Missing Text Messages

Missing Text Messages Due to Stolen Phone Results in No Sanctions: eDiscovery Case Law

In Fowler v. Tenth Planet, Inc., No: 1:21-cv-02430-JRR (D. Md. March 29, 2023), Maryland Magistrate Judge J. Mark Coulson recommended that District Judge Julie R. Rubin deny Defendants’ Motion for sanctions over missing text messages that were lost when the plaintiff’s phone was stolen, finding that “negligence [in failing to take additional steps to preserve the missing text messages] is insufficient to establish an intent to deprive”.

Case Discussion

In this wage and hours case under the Fair Labor Standards Act, a central issue in the case was whether Plaintiff was employed as a “line cook” for a portion of his employment when first hired in May 2019 so as to entitle him to overtime pay for hours worked in excess of forty hours per week during such time, or whether Plaintiff was only ever employed as a “kitchen manager” so as to exempt him from overtime pay for the duration of his employment.

eDiscovery Assistant

Defendants first served discovery requests on Plaintiff on September 16, 2022, which, among other things, sought text messages between Plaintiff and co-defendant Justine Zegna. Plaintiff, however, had his phone stolen “sometime in July or August of 2022” after leaving it in his car unattended following a long work shift. Plaintiff acknowledged that he had not “backed up” his phone prior to the theft, nor did he otherwise have a copy of relevant text messages between him and Zegna, disputing the importance or relevance of the “missing” text messages. Zegna had copies of text messages with Plaintiff starting in approximately December 2019, leaving an approximate six-month gap in text messages from May 2019 to November 2019, which included the time Plaintiff alleged he was employed as a line cook.

Based on Defendants’ assertions of bad faith on Plaintiff’s part for failing to preserve the text messages in a more robust way than simply storing them on his phone, and Defendants’ argument that their inability to use these missing text messages greatly prejudiced their case, Defendants asked the Court to dismiss the case or, alternatively, enter judgment in their favor.

Judge’s Ruling

Judge Coulson stated that “where Plaintiff was on notice that text messages, as the primary form of ‘written’ communication between him and his employer, would be important evidence of the nature and extent of Plaintiff’s job duties at various points during his employment (a central issue in the case), it was not reasonable to simply maintain those text messages only on his phone without at least verifying that they were being backed up to a cloud service or otherwise taking affirmative steps to create a copy given the not uncommon occurrence of a phone getting damaged, lost, or stolen.”

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Regarding Plaintiff’s question whether Defendants had exhausted all available avenues to recover the missing text messages, Judge Coulson stated: “Zegna attests that from the time she was made aware of this case, she has worked with her attorneys on recovering all relevant text messages but has been unable to obtain those from either her own phone or the phone of at least one other kitchen manager for the period at issue. Although Zegna does not detail those precise efforts, the Court assumes that Zegna and her counsel have conducted a reasonable inquiry pursuant to the duties imposed by Rule 26(g).”

However, Judge Coulson also stated: “The Court has no trouble finding that the missing text messages are relevant to the dispute, since they would have some tendency to prove whether Plaintiff was initially hired as a line cook or kitchen manager. However, the Court cannot conclude that Defendants have carried their burden of showing prejudice of a type sufficient to warrant any discovery sanction. On the record before the Court, the evidence as to which position Plaintiff was initially hired for is mixed. More importantly, the evidence as to whether the missing text messages would have supported Defendants or Plaintiff is mixed. As both sides also concede, the missing text messages are not the only potential evidence on this issue.”

Finally, recommending that Defendants’ motion for sanctions be denied, Judge Coulson stated: “The Court also concludes on the record before it that Defendants have not carried their burden of showing an ‘intent to deprive’ by clear and convincing evidence, a finding required to justify the sanctions they seek under Rule 37(e)(2). As noted above, Plaintiff should have taken additional steps to preserve the missing text messages considering the circumstances and timeline of this case, rather than rely on their continuing availability from their sole repository—Plaintiff’s phone. Such a failure under such circumstances may amount to negligence, but negligence is insufficient to establish an intent to deprive, especially when not coupled with any affirmative conduct on Plaintiff’s part to occasion the loss, other than being the victim of a theft. While forgetting to lock one’s vehicle after a long workday may have made such a theft more likely, none of the surrounding circumstances suggest that this lapse was intentional.”

So, what do you think? Are you surprised that the missing text messages couldn’t be recovered from a cloud backup? 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.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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