Every once in a while, I come across a court decision related to electronic discovery that just bothers the hell out of me. I mean, the kind of stuff that is just totally avoidable. Last year it was a case involving a hospital where every imaginable thing went wrong in terms of managing e-discovery. This time it’s the guys involved in releasing previously unreleased music by Prince.
The case starts off innocently enough, I suppose. The defendants somehow came to the conclusion that since they were involved in engineering some of Prince’s music before he died, they could release that music in early 2017 and no one would really mind. It turns out, of course, that Prince’s estate had some concerns.
The case, Paisley Park Enterprises v. Boxill, No. 17-CV-1212 (D. Minn), is remarkable because it actually started out on the right footing. Early on, the parties stipulated to certain e-discovery protocols and agreed to preserve reasonably accessible sources of ESI. The court issued a pre-trial order directing the parties to preserve ESI. So far, so good, right?
Not long after, a third party produced in discovery some text messages that included one of the defendants. This suggested to plaintiffs that some defendants were withholding text messages. As you can imagine, it all goes down the tubes from there. Plaintiffs filed a motion to compel defendants to product text messages and the court entered an order requiring them to do so.
Lo and behold, notwithstanding the stipulated e-discovery protocol and the court’s pre-trial order, the defendants failed to preserve all forms of ESI. The plaintiff’s moved for sanctions under Federal Rule of Civil Procedure 37(e)(1) and (2).
The court applied the more defendant-friendly 2015 sanction standards, but still found the defendants failed to preserve and spoliated potentially relevant information. The court determined that the trigger date for preservation arose in February 2017, when one of the defendants acknowledged they might be sued by Prince’s estate. Next, the court found the defendants failed to take reasonable steps to preserve ESI by failing to implement a litigation hold, failing to adjust the text retention on their phones, and most egregiously, by wiping and destroying their phones after the litigation had commenced.
In the end, the court sanctioned the defendants $10K and the plaintiff’s reasonable costs to remedy the defendant’s misconduct.
Look, I honestly don’t know what was going through the defendants’ minds when they agreed to preserve ESI and then soon after destroyed the very ESI they agreed to preserve. Only they can answer that question. What I do know –and what everyone who reads this needs to understand—is that if you are embroiled in litigation, or even if you anticipate that you may eventually be even tangentially involved in litigation, you need to preserve any potentially relevant ESI, including email, loose electronic documents, databases, human resources, finance and marketing systems, social media, collaboration and messaging data, and yes, even smartphones.
I don’t know if the defendants in the Boxill case were intent on destroying potentially relevant information or they just wanted to upgrade their iPhones. Either way, it seems to me that replacing those phones cost them more than $10,000. This was completely avoidable and in today’s world it continues to amaze me that parties to litigation still do not get this.
(This article originally appeared on Above the Law in slightly altered format)
