When will the court let you off the hook for a few deleted texts?

How To Tell The Difference Between Harmful Spoliation and Harmless Spring Cleaning

Author: David Solomon


Case Citation: Living Color Enters. v. New Era Aquaculture, 2016 U.S. Dist. LEXIS 39113 (S.D. Fla. Mar. 22, 2016).


Employee/Personnel/Employer implicated:


eLesson Learned:  While accidents do happen, in order to avoid court ordered sanctions, it’s important for a defendant to play by the rules.


Tweet This: What to keep in mind before deleting e-files. Don’t let being tidy at home be your downfall in court.


Any good lawyer will tell you, it doesn’t take much to end up in trouble with the court. When it comes down to it, most activities that you may think are routine can suddenly become grounds for some severe sanctions from a not so understanding judge.


In the case of Living Color Enters v. New Era Aquaculture, this became the central issue of focus for our poor defendant. When it came down to discovery, there began to be a sinking suspicion by the plaintiff in regards to the potential that the defendant was holding out on a few old text messages.


Specifically, the defendant was accused of a few things: deleting old text messages between the parties, refusing to turn over the archived messages, and having an alternative email address.


The court ultimately developed a test made up of three questions. The first was ‘whether the evidence should have been preserved’; followed by was the evidence lost because someone didn’t take reasonable steps to preserve it; and finally, can the evidence be restored or replaced through additional discovery.


The court goes on to asses that if the answer to all three questions is ‘no’, then there is no issue. In the Living Color case though, they were all answered affirmatively. This meant the court needed to go on to decide whether not there was bad faith or prejudice to the other side from the lack of the evidence.


Luckily for the defendant, the court took into consideration that the plaintiff managed to receive the majority of the necessary communications from a third party. Also, a lot of the information that was being requested by the plaintiff were found to be unnecessary to their case.


It’s safe to say that all of this could have been avoided if the defendant just kept an archive of his messages, especially when he found out that he was going to be sued. I mean, seriously, it doesn’t matter if you have a weekly ritual of smashing your iPhone with a sledgehammer because your scared of the government tracking you. If you find out that you’re getting a complaint in the mail, you either start saving your messages, or live with your fear of the feds following you. Either way, playing by the rules will save you both money and headaches in the end.


David received his B.A. in English and Communication from Rutgers University. He will receive his J.D. from Seton Hall University School of Law in 2017. Presently, David interns for a non-profit organization involved with prisoner reentry. After graduation, David will clerk for a judge in the Superior Court of New Jersey. 

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