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By Sam Lumpkin

The US District Court for the Western District of North Carolina recently held that even text messages are subject to the duty to preserve electronically stored information (ESI). In Shaffer v. Gaither, the plaintiff asserted claims against her former boss – a US District Attorney – for constructive dismissal based on sexual harassment and creation of a hostile work environment. The plaintiff also added a claim of defamation, based on an allegation that the former boss had falsely spread rumors plaintiff was fired for having a sexual relationship with a married member of the defense bar. Although the plaintiff admitted that the relationship existed, the defamation claim was based on what plaintiff argued was a false reason for her termination.

The defendant contended that plaintiff had sent her paramour text messages about the termination in which she admitted that she was fired because of the relationship. However, the text messages were lost when plaintiff purportedly dropped her cell phone in a bathroom. The court therefore had to address whether, in light of the claims pending at the time the text messages were lost, the plaintiff had failed to preserve relevant ESI.

Under the recent amendments to Federal Rule of Civil Procedure 37(e), the duty to preserve ESI arises when litigation is “reasonably anticipated,” and the loss of ESI is sanctionable if reasonable steps to preserve the ESI are not taken and the information cannot be restored or replaced through additional discovery. Dismissal is not an automatic remedy for spoliation, and some remedies are only available when the spoliating party acted with intent to deprive the opposing party of evidence.

The court in Shaffer found that before the messages were destroyed, plaintiff had threatened litigation and her attorney had discussed the messages with the defendant’s attorney. The messages were therefore clearly relevant to the defamation claim, and both plaintiff and her attorney knew they had a duty to preserve the messages at least five months before the messages were destroyed. The court did not immediately find that the destruction of the plaintiff’s phone was intentional, and because similar evidence might be available through the testimony of various parties who had viewed the texts before they were destroyed, the court did not order dismissal of the defamation claim.

However, the court did provide guidance to potential litigants: “Once it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one.” Although the plaintiff in Shaffer did not face dismissal due to the circumstances of the case, other litigants may not be so fortunate.