“Accidentally” Destroying Years of Text Messages Is No Defense to Spoliation Sanctions

The New York Supreme Court recently granted a defendant spoliation sanctions, in the form of an adverse inference instruction, against the plaintiff for the “accidental” destruction of years’ worth of text messages from the plaintiff’s cellphones. In Iacovacci v. Brevet Holdings, LLC, the plaintiff was terminated from his employment with the defendants in October 2016, through a letter that referred to “possible litigation” and requested that the plaintiff “preserve … electronically stored information (‘ESI’) relating” to the defendant’s business, “includ[ing] all emails, text messages, … and the like, … [including] material on a phone.” Several days after receiving the termination letter, the plaintiff filed a wrongful termination and breach of contract action, and the defendants filed an answer with counterclaims alleging misappropriation of the defendants’ documents, breach of fiduciary duty, and self-dealing.

Thereafter, a years-long discovery dispute ensued. The defendants served several requests for documents, including text messages, but the plaintiff objected to the demands as irrelevant and overbroad, and in March 2018, the plaintiff filed a motion for a protective order. In May 2018, the court ordered the plaintiff to produce cellphone and electronic calendar records as requested by the defendants, and at a status conference in December 2018, the court, again, directed the plaintiff to produce the text messages within 30 days.

Finally, in April 2019, the defendants filed a motion to strike the plaintiff’s complaint for failing to provide the requested text messages. The plaintiff produced text messages from February through October 2018 and an affidavit stating that he “accidentally lost or destroyed multiple phones in 2015, 2016, and 2017.” The details in the affidavit were vague, stating that he “lost or accidentally destroyed a phone in June 2015 and March 2016 [and] also lost a phone sometime in 2017.” He also stated that he left “[a] few” phones in places he did not recall and was unable to retrieve them, and two phones were destroyed, one in a pool and another crushed by a car.

The court noted that it was undisputed that “plaintiff had an obligation to preserve his cellphone and the data contained therein, including text messages, as far back as October 14, 2016, the date of plaintiff’s termination letter.” The defendants argued that the plaintiff intentionally destroyed his cellphones, and they submitted the deposition transcript of a third party, the plaintiff’s former business partner, who testified that around November 2016, he and the plaintiff discussed “deleting emails between each other” because the business partner would “likely become a witness to this action.” The defendants also argued that the plaintiff was able to retrieve the text messages in support of his claims in three different related lawsuits, and referred to text messages from early 2016 in his amended complaint in this action. In response, the plaintiff maintained that the destruction of the phones was accidental and never deliberate.

The court found that that “the destruction of plaintiff’s cellphones and the relevant data contained therein was grossly negligent, if not intentional.” The court explained, “[t]he vagueness of plaintiff’s affidavits concerning what happened to his phones, or when they were destroyed or why data was not preserved/backed up, and his failure to show any effort to preserve them may not be certain proof of intentional destruction but constitutes, at minimum, gross negligence.” The court added that “plaintiff[’]s ‘clumsiness,’ so to speak, is hardly an excuse for failing to produce evidence, particularly where, as here, the sophisticated parties are not strangers to litigation and using electronically stored information in support of that litigation.”

Further, the court found that the relevance of the missing text messages was presumed, and the plaintiff failed to rebut the presumption. The court noted that the availability of other evidence, such as evidence on the plaintiff’s computer, was “not an adequate substitute for the text messages which were of a different nature and also contain variably different content.” Accordingly, the court found that the defendants were entitled to sanctions against the plaintiff for the loss of his text message records and determined that an adverse inference instruction was the appropriate remedy. The court reasoned that other evidence was available to the defendants to support their counterclaims, such as emails and other documents on the plaintiff’s computer and information disclosed by third-party subpoenas. But, because the missing text messages were “directly relevant” to the plaintiff’s claims against the defendants and the defendants’ counterclaims against the plaintiff, the court allowed both issues to be addressed in the adverse inference instruction.

This case serves as an important reminder to parties and their counsel to take preservation obligations seriously and ensure that, once the duty to preserve relevant ESI has been triggered, there are safeguards implemented to preserve and back up ESI on relevant devices. It is extremely important to create a procedure that is defensible against accusations of spoliation and to be able to provide specific and detailed steps taken to preserve the data. In Iacovacci, the plaintiff’s vagueness concerning what happened to his cellphones and his inability to explain his failure to show any effort to preserve the records resulted in the court’s conclusion that the destruction was “grossly negligent, if not intentional.”

This decision is also noteworthy as it highlights the fact that many state courts, including New York and New Jersey courts, still permit imposition of serious spoliation sanctions, such as an adverse inference, in the absence of intentional conduct, as has been required under Fed. R.Civ.P. 37(e) since December 2015. Under Rule 37(e), a court may impose serious sanctions, such as an adverse inference, “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” This rule change has curtailed the imposition of serious sanctions in federal court matters since 2015. However, a number of states – including New York and New Jersey – have not adopted analogous standards under their state court rules. Thus, as this case demonstrates, in these state courts, the burden of proof on the moving party is lower when serious sanctions are sought – merely negligent or grossly negligent conduct may suffice. State court practitioners in these jurisdictions should take note.

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