The January 16, 2014 opinion in Calderon v. Corporacion Puertorique a de Salud from the District of Puerto Rico showed that selective preservation (or selective spoliation, depending on one’s perspective) is unwise, but also an undisclosed subpoena can be used as long it is used solely for impeachment purposes. District Judge Francisco A. Besosa found that the subpoena was permissible and that the plaintiff’s actions warranted an adverse inference sanction.
At the heart of this sexual harassment case are a number of text messages and phone records that were used as the basis of the action because they established the alleged misconduct by the defendant. The plaintiffs produced in print records of the text messages between the two parties, but the defense argued that they should all be excluded because a number of records were not included. While awaiting a ruling on this motion, the defendants “received documents in response to an ex-parte subpoena to T–Mobile that they had issued-unbeknownst to plaintiffs or the Court…. Defendants informed the Court of the phone and text logs in a supplemental motion in limine, in which they again request that plaintiffs’ case be dismissed due to spoliation of evidence and plaintiffs’ bad faith.” (*1)
The plaintiffs filed a motion to quash the subpoena because it was “procedurally defective” due to pre-service notice not being given. However, the court denied the motion on the grounds that the information gained from the subpoena was not introduced as evidence but merely used to impeach the plaintiffs’ citing Fed.R.Civ.P. 26(a)(3)(A), “a party need not provide the other parties with information about the evidence that it may present at trial if it intends to use the evidence ‘solely for impeachment.’” (*3)
Having denied the motion to quash the subpoena, the court turned to the spoliation of evidence. The records showed that the plaintiffs chose not to include 38 text messages from the defendant, as well as numerous responses from the plaintiffs. The Court concluded:
“It is reasonable to conclude that the mere act of [the plaintiff] forwarding himself some messages… reveals his understanding that those messages were relevant to a potential claim against [the defendant]. Even if [plaintiff’s] behavior does not amount to bad faith, his selective retention of certain messages…indicates his belief that the records would not help his side of the case.” (*3) (emphasis added)
Judge Besosa ruled that an appropriate sanction was a permissive negative inference because the plaintiffs’ “failure to preserve those messages severely prejudices defendants by precluding a complete review of the conversations and pictures sent between [the parties]. It also prevents defendants from introducing… other writings ‘that in fairness ought to be considered at the same time’ as the messages that plaintiffs seek to introduce at trial.” (*3)
- Electronic Discovery Law Blog, Text Messaging/Phone Records Establish Anticipation of Litigation; Spoliation Sanctions for Selective Preservation of Messages, K&L Gates, January 24, 2014.