See what I did there? 😉 Today’s Shark Week/eDiscovery Case Week post has a bite!  In Doe v. Purdue, et al., NO.: 2:17-CV-33-JPK (N.D. Ind. July 2, 2021), Indiana Magistrate Judge Joshua P. Kolar granted the defendants’ motion for Issuance of Order to Show Cause Regarding Plaintiff’s Non-Compliance with Order and Spoliation of Evidence “with relief different than requested” for the plaintiff’s deletion of 11 Snapchat videos and images, stating “destroying data that one is under a duty to preserve is an extremely serious matter, and those who do should not be surprised to find themselves on the receiving end of a motion for sanctions.”

Case Background

In this case where the plaintiff, alleging that he was wrongly suspended from Purdue University and, as a result, dismissed from Navy ROTC because of a disciplinary case based on false accusations of sexual misconduct, on June 2, 2020, the plaintiff agreed to provide “a complete data download of all Instagram and Snapchat data from his accounts, from August 2015 to the present.” On July 16, the plaintiff downloaded and received a zip file of his Snapchat data, which included links to downloadable videos and images that had been saved in the Memories folder within the Snapchat application on his phone. On July 31, the plaintiff represented to the Court that “Snapchat does not archive content files” or “retain user information past 30 days,” that “content is not what is available at [his] end,” and that he had conducted research to determine what content could be downloaded from Snapchat prior to making these representations.

On September 30, the plaintiff produced a Snapchat download which contained broken HTML links and downloads to 86 images and videos, ranging from 2016 to 2020.  A warning printed across the top of this download notes that “[d]ownload links below will expire 7 days from when your data file was made available to you.”  Because the September 30th production was downloaded on July 16th, the links sent to Defendants had expired by the time they were produced.

On October 7, the plaintiff produced a new Snapchat data download with working links, but the new download omitted 11 links to videos and images that were listed in the September 30 production. The defendants stated that, after being notified of the missing items, the plaintiff admitted he had deleted certain files from the Memories folder within the Snapchat application on his phone.  Regarding the missing 11 Snapchat videos and images, the plaintiff stated:

“I did delete some files off of the Snapchat application on my phone at some point between zip file productions, with no idea that they would also be deleted from my Snapchat account and Snapchat servers entirely. As my cell phone slows down and fills up over time, I try to find ways to clear space and memory to keep its performance as optimized as possible. I deleted some images and videos off my phone that I did not care for anymore, without the realization that they held any relevance to the zip file productions, or that would be permanently deleted from the Snapchat account. Apparently, however, that was the effect of deleting files off my cell phone… Still, because I have never posted anything relevant to my court case on my social media, I can say that the 11 files were not material to this case. From what I remember, they were comprised of more pictures and video clips from video games and TV shows, a picture of my friend in a car as we drove to a creek, and a picture of a Walt Disney statue at Disney World.”

Judge’s Ruling

Noting that “Plaintiff’s duty to preserve the relevant Snapchat data arose, at the latest, when Defendants sought this data during discovery”, Judge Kolar stated: “Plaintiff’s duty to preserve the Snapchat data arose no later than March 11, 2020, when it was explicitly requested in the second request for production.”  He also stated: “Plaintiff himself concedes that he deleted the files from the Snapchat application on his phone” and also that “[t]he simple fact is that, at best, Plaintiff undertook no effort to ensure that the files would be preserved elsewhere before he deleted them from his Memories folder. Plaintiff plainly breached his duty” to preserve the 11 Snapchat videos and images.

However, Judge Kolar noted: “the Court finds believable Plaintiff’s assertion that he deleted the files to free up space and memory on his phone, rather than out of an attempt to hide their content from Defendants…As such, Defendants’ spoliation claim fails.”

But Judge Kolar also noted that “Plaintiff is not off the hook for his actions—and, separately, neither is his counsel. In general, federal courts have inherent power to impose sanctions for misconduct.”  As a result, Judge Kolar ordered the plaintiff to “pay Defendants’ attorneys’ fees and costs associated with litigating the motion for sanctions at Docket Entry 92, the instant motion at Docket Entry 133, the hearing on February 22, 2021, and any other work related to review of Snapchat data or litigation concerning the deleted files”, and decided he would “allow for the introduction of limited evidence and the submission of a jury instruction related to Plaintiff’s destruction of this data” and permit the parties “to present evidence to the jury concerning the loss of the Snapchat data, and argument as to the relevance of that data, and the jury will be instructed that it may consider that evidence and argument in making its decision.”

So, what do you think?  Do you think that’s a sufficient sanction for admitted intentional deletion of Snapchat videos and images?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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