dina-friday-1We’ve all been there. Your friends throw you in the pool with your phone in your pocket. You repeatedly slice your finger on shards of glass from your phone’s shattered screen. Or, maybe you forget your phone isn’t waterproof and dump champagne all over it. For most of us, the worst part of these ordeals is a trip to the Apple Store and the hefty price tag of the latest iPhone. However, if you’re a litigant with text messages that are relevant to pending litigation, the failure to preserve those messages could result in spoliation sanctions or an adverse inference instruction. While case law is unlikely to provide insight on what to do with a champagne-covered, non-waterproof phone, a recent district court decision, Shaffer v. Gaither, provides guidance to litigants on what steps to take to preserve potentially-relevant electronically-stored information (“ESI”) stored on mobile devices. 

The plaintiff in Shaffer filed a sexual harassment claim against her former boss, and the defendant moved to dismiss the case alleging that plaintiff failed to preserve certain ESI – sexually-suggestive text messages that plaintiff allegedly sent, which the defendant contended were critical to his defense. Plaintiff lost the text messages when she destroyed her phone by dropping it on a bathroom floor and then returned it to her cell phone carrier as part of an insurance claim, rendering the texts irretrievable (the plaintiff said her cell phone carrier informed her that “the provider does not store the contents of the texts, but only keeps records of when texts are sent”). Although the text messages were lost before the plaintiff filed suit, the court held that plaintiff should have preserved the text messages well before that point since she had previously sent a letter threatening litigation and had also already filed an EEOC charge.

The Shaffer court held that maintaining the messages on the phone itself was insufficient and something more should have been done: “[o]nce it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one.” While the court determined that the plaintiff, and her counsel, failed to take reasonable steps to preserve the text messages at issue, the court declined to issue the severe sanction of dismissing plaintiff’s claim. Analyzing revised rule 37(e) of the Federal Rules of Civil Procedure, the court determined that the more appropriate action was to craft an order that cured the prejudice from the lost messages. To that end, the court allowed individuals that had read the messages to testify as to the messages’ contents, and the court reserved the right to issue a spoliation instruction to the jury following the evidence presented at trial.

Shaffer serves as a reminder that litigants need to be proactive in preserving the various forms of ESI in their possession, including text messages and other information stored on mobile devices. As the Shaffer court held, simply maintaining text messages on the phone may be insufficient and litigants should do more (e.g. backing-up the phone or printing the relevant content) in order to preserve the ESI at issue. Parties faced with this situation should consult an eDiscovery expert to assess their options for preserving such information.