Lawsuit Evidence Erased from Personal & Corporate Cell Phones | Court Punishes | Business Policy
To spoliate means to destroy or conceal evidence that one has reason to believe will be needed in litigation. If a court finds a litigant has spoliated evidence, such as records, then the court will impose penalties.
Courts have punished many organizations for failing to keep electronic mail records. Logically, the same punishment awaits organizations that fail to retain executive text
and instant messages, but to support that proposition I’ve not been able to cite a case. Now I can cite Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009).
In a trade secret lawsuit, the court had ordered several employees of the defendant to surrender their BlackBerries to forensic experts for investigation. (Two of the BlackBerries belonged to the corporate defendant; one was the personal property of the employee.) But when the experts received the BlackBerries, the devices were devoid of data – no text message records, no calendar items, no call history, nothing. The court knew that the employees regularly used the devices for more than just telephone calls.
The defendant argued there was no spoliation because the devices were configured so that all electronic mails would be copied and preserved in the defendant’s corporate e-mail server. Yet the court was highly suspicious. What about text messages? Those were not copied to the e-mail server. Why were all of the devices wiped clean?
The court concluded that the defendant and/or its employees had intentionally destroyed records such as text messages on the smart-phones. As punishment the court dealt the defendant a strategic disadvantage in the lawsuit, in the form an adverse inference for the jury later in the lawsuit. (In other words, as the jury is empaneled, it will be informed that the defendant had mishandled important records, which could be taken as a strike against the defendant.)
Lesson: As a matter of policy, an enterprise is wise to preserve the business text and instant messages (IM) of its employees – especially executives, managers and professionals -- just as it does email. A text message can be legal evidence just as an email can be.
The phones in this case were BlackBerries. It seems the outcome would have been the same were the phones, Androids, iPhones (which now supports MMS) or some other form of PDA. Eventually, we'll see cases dealing with record retention/destruction for MMS (multimedia messaging service). Soon thereafter the cases will address high definition (HD) videoconferencing, also known as telepresence.
Update: A policy workshop I led created some language for enterprise policy on recording text, Facebook and other "unconventional" electronic business messages.
Another Update: Modern smartphones like the HTC One allow the user to back text messages up to an email account, like an enterprise account. Thus, when an executive sends or receives a legally significant text message, she can archive it in her enterprise email account.
Mr. Wright teaches eDiscovery and Data Security Law at the SANS Institute.