Sanctions for the Nondisclosure of Relevant Text Messages

Sanctions for the Nondisclosure of Relevant Text Messages

Author: JAT
Case Citation: Schmalz v. Village of North Riverside 13 C 8012 (N.D. Ill. 2018)
Employee/Personnel/Employer Implicated: Company, Miscellaneous, Mayor, Police Chief
eLesson Learned: If your old phone contains text messages relevant to impending legal action, keep it! Failure to preserve the messages may result in sanctions, even if you innocuously discard your old phone for a new one.
Tweet This: Before Getting a New Phone Consider Preserving Old Text Messages…. or Face Sanctions!

So you got rid of your old phone for a new one? Did you forget about those texts on the old phone you sent, relevant to the lawsuit before you, in which you totally disparaged the adversary? Did you also forget about the litigation hold letter you received prior to the suit, putting you on notice about impending litigation? Well, guess what, now you’re stuck paying his attorneys’ fees, and the jury gets to consider the damning content in those lost texts. Consider the following case as a cautionary tale and protect yourself from the sanctions that follow a failure to make proper disclosures in the discovery of electronically stored information (ESI).

In Schmalz v. Village of North Riverside 13 C 8012 (N.D. Ill. 2018), Plaintiff Schmalz motioned for sanctions against defendants for their failure to produce text messages and spoliation of evidence. Schmalz, a police sergeant, was surreptitiously passed for a lieutenant promotion despite having the qualifications, at the bidding of Defendants Hermanek and Neimann, the mayor and the chief of police respectively. At a deposition in February 2016, Neimann revealed he had at least 50 text messages with Hermanek regarding police department bureaucracy, who he did not want for lieutenant, and specifically Schmalz. During the course of the lawsuit, both defendants had procured new cellphones and as a result, the relevant text messages were lost. In the end, the court determined that the parties would be allowed to present evidence to the jury about the spoliated evidence and the relevance of the lost information. The court also awarded Schmalz with the cost of attorney’s fees for filing the motion. How and why the court reached this judgment, as with all judgments, is a matter of applying the facts to the law.

Firstly, Federal Rule of Civil Procedure 37(e) lists elements that must be met in determining whether sanctions are appropriate. Naturally, all of them were present in this case. Defendants admitted that they had a duty to preserve the evidence when they received a litigation hold letter in August 2013. Yet neither defendant took any measures to preserve the texts, which was particularly troubling for Hermanek considering he himself was also a lawyer. Instead, defendants purchased new phones that year and the old phones were unsurprisingly discarded; the texts were lost as a result, unable to be recovered. Accordingly, sanctions were available. As to the extent of such sanctions, because the defendants did not discard the texts intentionally, and simply acted with gross negligence, the court deemed lesser sanctions appropriate. Second, the loss of those highly relevant messages prejudiced Schmalz, depriving him of the opportunity to know “the precise nature and frequency” of those communications. With prejudice established, the court may order measures necessary to cure the prejudice.

Let’s take stock for a moment. The defendants had a duty to preserve the ESI when they received the litigation hold letter. They breached that duty when they negligently disposed of their old phones for new ones. As a result, they exposed themselves to lesser sanctions. Finally, because the loss of ESI prejudiced Schmalz, corrective measures are necessary. As stated above, those measures involved allowing the parties to present evidence to the jury about what was in the lost text messages. Moreover, the jury is allowed to use that information in making their decision. I imagine that could not have been a very pretty picture. And what of the attorney’s fees? Well as per Federal Rule of Civil Procedure 37(a), if the party whose failure to disclose the relevant ESI (i.e. the party who necessitated the motion) cannot justify the nondisclosure, then they have to pay for the moving parties attorney’s fees, as was the case here. It’s sort of a kick you while you’re down kind of sanction.

In sum, if you engage in text message correspondence about a matter relevant to impending litigation, be sure to save those messages. Relevancy is a very low threshold, so if you think the content of a text may be relevant to litigation it most likely is. You would also do well to recognize when your duty to preserve begins; a litigation hold letter is certainly one such signal.  

JAT is a second-year law school student at Seton Hall University School of Law pursuing an Intellectual Property Concentration along the Technology and Business Law track.

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