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In United States v. Suarez, the United States District Court for the District of New Jersey held that the government violated its duty to preserve relevant data during an ongoing investigation aimed at prosecution of certain individuals.
During an investigation into public corruptness in the state of New Jersey. During discovery, the defendants requested that the government turn over text messages between the FBI agents conducting the investigation and their cooperating witness. The government indicated during oral argument that it would produce the text messages, but later stated that it could not produce them because the witness had used a personal cell phone that deleted the messages after three to five days. Neither could it produce text messages from the FBI agents’ phones, because “the FBI retained text messages of its agents only for so long as limited storage space on its servers allowed.” Thereafter, the government did produce certain text messages of certain agents, but not all those requested by the defendants.
At a hearing, the FBI agents testified that they personally deleted the text messages from their Blackberry devices, and that they had not been instructed to preserve them. The government brought in an expert to explain to the court how the FBI’s data retention system worked, but none of the witnesses were able to explain why some text messages from a certain time period were retained, while others were apparently deleted. Additionally, no reasonable explanation was provided as to why the FBI placed a litigation hold on text message data after January 2010, but not before.
The defendants requested that because the government failed to produce certain text messages related to its investigation of the defendants, the court either suppress related evidence or issue an adverse inference instruction to the jury.
The court held that the text messages constituted “statements” by prospective government witnesses, and, as such, were discoverable. Each agent had testified that he intentionally deleted the text messages in order to free up space on the phone’s memory, and not pursuant to any destruction policy. The FBI had not issued a litigation hold to any of these agents. The court found this problematic, as the FBI
was well-equipped to preserve documents relevant to the litigation, had the U.S. Attorneys’ Office requested it to do so. The court criticized the U.S. Attorney’s Office for failing to issue this litigation hold for seven months after the onset of the investigation. It stated that, “[w]ithout an appropriately timed litigation hold, the Court is left to speculate as to the contents of the missing text messages and to entertain various theories as to the cause of their disappearance.”
A governmental party conducting a criminal investigation must issue a litigation hold at the onset of the investigation in order to instruct its personnel to preserve electronic data, such as text messages and emails. Such a government party will not be excused from failing to issue a litigation hold to its agents or officers. The onset of an investigation specifically aimed at prosecution constitutes reasonable anticipation of litigation.
The court concluded that sanctions in the form of an adverse inference against the government was warranted. The jury would received a “spoliation charge” allowing it to infer that the deleted messages were favorable to the defendants.
Kathy Trawinski is a Seton Hall University School of Law student (Class of 2012) who focuses her studies in the area of commercial litigation. She is an Associate Editor of the Law Review and a member of the Moot Court Board. She will begin as a first year associate at Day Pitney LLP in the fall of 2012. Prior to law school, she was a 2009 graduate of the University of Virginia, where she earned a BA in English.