In Iacovacci v. Brevet Holdings, LLC, the New York Supreme Court recently granted a defendant spoliation sanctions, in the form of an adverse inference instruction, against the plaintiff for the “accidental” destruction of years’ worth of text messages from the plaintiff’s cellphones.
After a years-long discovery dispute, plaintiff rejected defendant's discovery demands for documents, including text messages. The court entered s a protective order and ordered plaintiff to produce the text messages.
The court found that that “the destruction of plaintiff’s cellphones and the relevant data contained therein was grossly negligent, if not intentional.” Further, the court found that the relevance of the missing text messages was presumed, and the plaintiff failed to rebut the presumption. The court noted that the availability of other evidence, such as evidence on the plaintiff’s computer, was “not an adequate substitute for the text messages which were of a different nature and also contain variably different content.”
Accordingly, the court found that the defendants were entitled to sanctions against the plaintiff for the loss of his text message records and determined that an adverse inference instruction was the appropriate remedy. The court reasoned that other evidence was available to the defendants to support their counterclaims, such as emails and other documents on the plaintiff’s computer and information disclosed by third-party subpoenas. But, because the missing text messages were “directly relevant” to the plaintiff’s claims against the defendants and the defendants’ counterclaims against the plaintiff, the court allowed both issues to be addressed in the adverse inference instruction.
This case demonstrates the importance of ESI preservations and the court's readiness to impose sanctions.
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