E-Discovery Pitfalls: Cell Phone Retention Settings Can Lead to Sanctions for Spoliation of Evidence

By J. Blakely Kiefer

Imagine this scenario: You are an employee who uses your personal cell phone for company purposes to send and receive business-related text messages. Litigation ensues and you, as part of your employment, receive from the company a preservation notice or litigation hold notifying you to preserve and not delete communications relevant to the issues raised by the litigation. Text messages are included within the definition of communications for discovery purposes. A discovery request is served on the company seeking all communications relevant to the litigation, which requires the company and you, as someone with responsive information, to produce your text messages. Only then do you discover that your cell phone has certain retention settings, and is set to automatically delete text messages after thirty (30) days. While you had responsive text messages that should have been produced in litigation, you no longer have those messages because your phone automatically deleted them. Your deleted text messages not only place you in violation of your company’s preservation notice and/or litigation hold, but could potentially result in the company being sanctioned in the litigation for destroying or failing to preserve relevant evidence. Sound farfetched? It’s not.

Automatic deletion settings on cell phones, i.e., iPhones or androids, can give rise to claims for spoliation of evidence potentially resulting in sanctions. Spoliation is defined as the destruction of or failure to preserve evidence for use in either pending or reasonably foreseeable litigation. See SCR-Tech LLC v. Evonik Energy Servs., LLC, No. 08 CVS 16632, 2014 WL 7640129, at *5 (N.C. Super. Ct. Dec. 31, 2014). The burden to establish spoliation is relatively low since a party merely must demonstrate that the spoliator (i.e., the party accused of destroying or failing to preserve evidence) failed to preserve potentially relevant information while being on notice of the possibility of future litigation. Id. In other words, the spoliator of evidence need not have acted willfully for sanctions to result. See Tumlin v. Tuggle Duggins, P.A., No. 15 CVS 9889, 2018 WL 2327022, at *11 (N.C. Super. Ct. May 22, 2018).

The loss of evidence is sanctionable when the spoliator fails to take reasonable steps to preserve relevant information and that information cannot be restored or replaced through additional discovery. See Shaffer v. Gaither, No. 5:14-cv-00106-MOC-DSC, 2016 WL 6594126, at *2 (W.D.N.C. Sept. 1, 2016); see also Tumlin, 2018 WL 2327022, at *10-11. The duty of a party to preserve electronically stored information, including text messages, arises when litigation is reasonably anticipated. See Nuvasive, Inc. v. Kormanis, No. 1:18CV282, 2019 WL 1171486, at *6, n.8 (M.D.N.C. Mar. 13, 2019).

While it seems implausible that a party could be sanctioned for failing to preserve text messages that it did not know were being automatically deleted, a federal court in North Carolina recently did just that. In that case, in a letter dated six (6) days after defendant-employee resigned from plaintiff’s employ, plaintiff notified defendant of its concern that defendant’s employ with a competitor would lead to violations of defendant’s contractual obligations to plaintiff and stated it would take legal action against defendant if it became aware of a breach. See Nuvasive, Inc., 2019 WL 1171486, at *3. Plaintiff-employer further advised the defendant to preserve all relevant information and to refrain from destroying relevant evidence, including text messages. Id. Thereafter, plaintiff sued defendant for breach of the agreement. Id. at *4. During discovery, plaintiff sought all communications between defendant and certain individuals that were relevant to plaintiff’s claims. Id. Defendant failed to produce responsive, relevant text messages during the time period he had a duty to preserve because those messages had been automatically deleted by his iPhone. Id. at *4-5. Defendant contended that although he took steps to preserve communications upon receiving plaintiff’s letter, he was not aware of his iPhone’s retention settings for text messages, and somehow unknowingly enabled a setting that automatically deleted all text messages after thirty (30) days. Id. Defendant asserted he was not aware that this setting was active until he began searching for text messages to respond to plaintiff’s discovery requests, at which time he discovered the messages had been deleted. Id. Despite defendant’s attempts to preserve communications, the court sanctioned defendant for spoliation of evidence, concluding that although defendant had a duty to preserve the text messages upon receiving plaintiff’s letter, defendant failed to take reasonable steps to preserve the text messages, which resulted in the loss of relevant evidence that could not be restored or replaced. Id. at *8, 10, 16.

As demonstrated by the Nuvasive case, it is important to be aware of your cell phone’s retention settings from a litigation perspective, especially since sanctions for spoliation of evidence can range in severity. Likewise, if you use your cell phone for company business purposes, it is also important to be aware of your cell phone’s retention settings to ensure that you comply with your company’s data retention policy and/or any preservation notices.

The default setting on iPhones is to retain text messages forever. However, there is the option to change that setting to automatically delete text messages after one (1) year or thirty (30) days. Android phones retain text messages based on size or the number of conversations.

The bottom line: know your cell phone’s data retention settings, and if you use your cell phone for company business purposes, coordinate with your employer to ensure that you are retaining text messages in accordance with company policy.