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Duty to Preserve Text Messages in Anticipation of Litigation

Under federal law, a party anticipating litigation has an affirmative obligation to preserve relevant documents and other tangible evidence.  With today’s prevalence of electronic data and devices, the scope of that duty as applied to electronically stored information (or “ESI”) is a frequently litigated issue and can give rise to sanctions if a party “fail[s] to take reasonable steps to preserve [ESI].” F.R.C.P. 37 (e).  A case from earlier this year, Spencer v. Lunada Bay Boys, 2018 WL 839862 (C.D. Cal. Feb, 12, 2018), illustrates the application of these principles to an often- overlooked type of ESI:  text messages.

In Spencer, the plaintiffs alleged that a group of local residents from the adjacent community of Palos Verdes Estates had for years harassed beach visitors; they sought relief on various federal and state law claims.  One of the defendants, Blakeman, had failed to retain several relevant text messages he had exchanged with other defendants shortly before the lawsuit was filed.  Plaintiffs argued that sanctions should issue against Blakeman on the grounds that he failed to take “reasonable steps” to retain those messages, even though he did not affirmatively destroy them and even though he had no technical expertise concerning their preservation.

The court affirmed the magistrate’s decision to sanction Blakeman on the basis that he had failed to take “reasonable steps” to preserve these text messages in violation of F.R.C.P. 37(e).  It also affirmed the magistrate’s finding that, regardless of his lack of technical expertise, Blakeman could have taken a photograph of the text messages or locked them so they would not be deleted or overwritten.  The court held that plaintiffs could present evidence and argument at trial regarding what it deemed to be spoliation of evidence.

The Spencer decision is currently on appeal (no. 18-55383, 9th Cir., March 22, 2018) but serves as a powerful reminder that clients should immediately undertake reasonable efforts to preserve all forms of ESI, including relevant text messages of its employees, as soon as it reasonably anticipates litigation.  While the scope of the duty to preserve ESI is fact-specific (and could include things such as online and offline data storage and the disabling of computer programs and protocols which periodically delete data), Spencer suggests that the means available to a party could determine the kinds of things it must do to satisfy the duty but will not abrogate the duty.