Written by Doug Austin, Editor of eDiscovery Today
If you follow my writing, you know that I cover a lot of case law – typically between 60 to 70 cases a year. When you do that, you notice certain trends that illustrate some of the challenges that organizations face today with regard to electronic discovery. One of the more common trends these days relates to cases related to mobile device data and the failure to preserve that data. Many organizations today support a Bring Your Own Device (BYOD) approach to employees and their mobile devices; however, many of them don’t have an effective policy or plan for addressing mobile device data when litigation hits.
Let’s take a look at three recent cases where failure to preserve mobile device data led to sanctions requests by requesting parties.
In DriveTime Car Sales Company, LLC v. Pettigrew, No.: 2:17-cv-371 (S.D. Ohio Apr. 18, 2019), Ohio Judge George C. Smith granted in part and denied in part the plaintiff’s motion for spoliation sanctions against defendant Pauley Motor, denying the plaintiff’s request for an adverse inference sanction by ruling that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent” when Bruce Pauley failed to take reasonable steps to preserve text messages when he switched to a different phone. However, he did note that “less severe sanctions are available to DriveTime under Rule 37(e)(1) upon a finding of prejudice.” Judge Smith also allowed the plaintiff to “introduce evidence at trial…of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages. DriveTime may argue for whatever inference it hopes the jury will draw.”
In NuVasive, Inc. v. Kormanis, No. 1:18CV282 (M.D.N.C. Mar. 13, 2019), North Carolina Magistrate Judge Patrick Auld granted the plaintiff’s motion for sanctions in part, giving the plaintiff additional time to depose and subpoena text messages from a key contact who indicated that he was unable to retrieve text messages beyond two months prior (but also refused to let the plaintiff inspect his devices). Judge Auld also recommended that, “because the record supports but does not compel a ‘finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages’] use in the litigation, the Court submit that issue to the ‘jury, [with] the [C]ourt’s instruction[s] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation’”.
In Paisley Park Enter., Inc. v. Boxill, No. 17-cv-1212 (WMW/TNL), (D. Minn. Mar. 5, 2019), a case related to the late rock legend Prince, two defendants not only failed to disengage the auto-delete function on their phones, but they also each wiped and discarded their phone – one did it twice – since October 2017. Minnesota Magistrate Judge Tony N. Leung granted in part the plaintiffs’ Motion for Sanctions Due to Spoliation of Evidence, ordering the Rogue Music Alliance (“RMA”) Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ “misconduct”, and also ordered the RMA Defendants to pay into the Court a fine of $10,000, but chose to defer consideration of adverse inference instruction sanctions to a later date, closer to trial.
As you can see, failing to preserve data from mobile devices led to various levels of sanctions against the spoliating parties, not to mention the effort it took to defend themselves against even more significant sanctions. Here are two considerations that you need to keep in mind to avoid the same issues that these parties encountered:
- BYOD Policy: Many organizations support employees’ ability to use BYOD devices, but a lot of them don’t have a formal policy regarding the use and management of those devices, which includes an employee’s duty to preserve mobile device data when litigation hits. Organizations need a clear BYOD policy that emphasizes the rights of the organization and the responsibilities of the employees using BYOD devices for company use, including those associated with preservation and collection of mobile device data.
- Litigation Hold Notices: Litigation hold notices need to be extended to enforce preservation of mobile device data, including instructions to suspend any auto-deletion of text messages (as well as messages from other messaging apps) and spell out the responsibilities to preserve data from mobile devices before discarding those devices.
Just because a device is owned by an employee doesn’t mean there is any less responsibility for that employee to take appropriate steps to preserve that data during litigation. Organizations need to take control of that challenge by implementing a formal BYOD policy and ensure litigation hold notices clearly spell out the duty of custodians to extend preservation to their BYOD devices.
Next week, I’ll discuss best practices associated with BYOD policies. My first IPRO cliffhanger!
For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, feel free to follow, eDiscovery Today! And as part of the continued educational partnership between IPRO and eDiscovery Today, he’ll be here in the IPRO Newsroom next week with more educational content!