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Could Deleted Instant Messages (IMs) be a Basis for Spoliation?

Posted on September 22nd, 2014

Any form of electronic data that is relevant to a claim or defense is discoverable evidence; therefore, instant messages (also called IMs) can certainly be the basis of a spoliation allegation if they are deleted after a duty to preserve evidence is in place.

Broadspring, Inc. v. Congoo, LLC, No. 13-CV-1866(JMF) S.D.N.Y. August 20, 2014, is business tort litigation involving two advertising agencies, whereby each alleged the other had engaged in spreading false and defamatory information about the other on the internet. The parties entered into a Stipulation and Order for Preservation of Evidence. This Order “explicitly required the preservation of [a]ll . . . instant messaging . . . related to this dispute.” The Plaintiff sought the instant messages and specifically included them in the agreement because the Defendant employees were required to use Yahoo! IM accounts for work. However, during the depositions of three Defendant custodians, each admitted to not preserving their IMs.

The court considered the following in its ruling on Plaintiff’s Motion for Spoliation of the IMs:

1. Did Defendant have a duty to preserve the Instant Messages?

This element was easy to fulfil, as the Defendant’s instant messages were specifically included in the order which stated what electronic data must be preserved and tendered.

2. Were the IMs negligently or willfully destroyed?

The court considered the level of culpability when Defendant custodians deleted the IMs. The custodians were aware of the Preservation Order. In-house counsel explained to them the order, but no one preserved IMs or took steps to ensure the Yahoo! IM settings would not automatically delete the data. This was grossly negligent.

3. Were the IMs relevant to Plaintiff’s claim or defense?

The court found the spoliation to be grossly negligent and not willful (where the court will presume the destroyed evidence was relevant).  As to relevance, Plaintiff argued that since they were required to use IMs for work, the unrecorded IMs would be relevant. However, the court wanted more direct proof of relevancy and stopped short of imposing an adverse inference instruction.

The court did enter attorney fees and costs to Plaintiff as sanction for Defendant’s conduct in failing to preserve the IMs.

ILS – Plaintiff eDiscovery Experts

Did you know? Instant messages (IMs) can be an overlooked form of electronic communication. Always request IMs if relevant to a claim!

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