NEWSFLASH: THINK TWICE BEFORE DELETING THOSE TEXT MESSAGES!
Author: Tomasz A. Sobieraj, Esquire
Nowadays, the use of computers and email is all but ubiquitous. This phenomenon has significantly impacted the practice of law as lawyers have grappled with how to address the preservation, review, and production of electronically stored information (“ESI”) in the discovery process of litigation. Now, as smartphones, tablets, and other smart devices are becoming more prevalent and nearing the point of ubiquity, lawyers are again grappling with new issues pertaining to the preservation of ESI as the landscape shifts with the increasing use of text messages, social media, and various messaging applications and platforms.
The general rule in Illinois is that there is no duty to preserve evidence. However, the duty to preserve evidence arises when a party reasonably anticipates litigation. Once a party reasonably anticipates litigation, it must suspend its routine document destruction policy and enact a litigation hold to preserve relevant documents. At a minimum, the duty to preserve is triggered when a party is served with a complaint, but oftentimes it is triggered much earlier when the party itself anticipates potential litigation or receives a litigation hold notice.
Potential litigants, and in certain instances, third parties that may become involved in the litigation, must be cautious when manually erasing or employing options that routinely and automatically erase ESI from their devices. This includes all ESI on all devices. The pitfall of failing to preserve ESI from smartphones is perfectly illustrated by a recent decision from the Northern District of Illinois. In Schmalz v. Village of North Riverside, the defendant was sanctioned for the spoliation of text messages. The plaintiff issued a litigation hold notice, and the defendant acknowledged its receipt. The defendant admitted to having approximately 50 relevant text messages in a deposition, but when the plaintiff requested the defendant to produce the text messages, the defendant could not produce them because they no longer had the smartphone with the text messages. The district court found that the defendant was grossly negligent in failing to preserve the text messages. The plaintiff was allowed to present evidence regarding the lost text messages at trial and make an argument that the jury could presume that the content of the text messages was not favorable to the defendant. The district court also awarded the plaintiff attorneys’ fees.
The Schmalz case is a good reminder to think twice before deleting your text messages. As our reliance on smartphones, text messages, and various messaging applications continues to increase, it is critical to preserve ESI when litigation is reasonably anticipated. Otherwise, the failure to preserve ESI could have adverse effects and severe ramifications on your ability to successfully prosecute or defend claims.
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