Court Orders Adverse Inference Sanctions Against Defendant in Lynyrd Skynyrd Litigation, Arising From 3rd Party Spoliation of Text Messages
In the case of Ronnie Van Zant, Inc. v. Artemis Pyle, (S.D.N.Y. Aug. 28, 2017) the plaintiffs, Ronnie Van Zant, Inc., Gary Rossington, Johnny Van Zant, Barbara Houston, Alicia Rapp, and Carinna Gaines Biemiller (“Plaintiffs”) had sued former bandmate Artemis Pyle and Cleopatra Films and Records (“Defendants”) to stop them from producing a movie about Lynyrd Skynyrd and the 1977 plane crash that killed Ronnie Van Zant and Steven Gaines.
Previously, in 1988, a consent order had been entered into between the parties which had resolved a fight between Judy Van Zant Jenness (“Jenness”), and the surviving band members over a tribute tour that they wanted to do that Jenness opposed. The consent order directed how the parties could or could not use the band name, Lynyrd Skynyrd and the order covered third parties acting with the signatories to the consent order.
Later, in July of 2016, Plaintiffs discovered Defendants were working on a film project. An article came out in Variety magazine outlining the plans for the movie. Shortly thereafter, Plaintiffs initiated the action for a permanent injunction. The case went to trial in July of 2017. The Court found that the film Defendant Cleopatra was producing with Defendant Pyle’s participation was a film about the band, and therefore fell within the parameters of the consent order of 1988. The Court ruled Defendant Pyle was not allowed to participate in the film.
The Court also indicated that Cleopatra, not a party to the 1988 consent order, was bound by the terms of the order because of its involvement with Defendant Pyle. Jared Cohn (“Cohn”), a screenwriter for Cleopatra was conversing with Defendant Pyle via text message and Facebook Messenger to discuss the planned movie. Plaintiffs sent Defendants a Cease and Desist letter upon hearing about the planned movie, citing the 1988 consent order. Cohn contacted Plaintiff Jenness to discuss the Cease and Desist letter. Cohn continued to work on the movie despite the Cease and Desist letter, but discontinued publicly citing Defendant Pyle’s involvement. Cohn and Pyle continued working together and communicating via text message.
As an initial matter, Plaintiffs filed a motion, pursuant to FRCP 37(e) or the Court’s inherent authority, requesting that the Court draw an adverse inference with respect to the unpreserved text messages between Cohn and Pyle lost when Cohn switched phones in May 2017. The Court determined that such showing has been met.
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. Here, the litigation was reasonably foreseeable because of the Cease and Desist letter. Cleopatra argues that it cannot be sanctioned for the actions Cohn, a non-party, took and whose phone, Cleopatra contends, was not within their control. However, the concept of control has been construed broadly. Here, while Cohn is a non-party, his text messages were essentially under Cleopatra’s control. Cohn was hired by Cleopatra to work on the film. Over the course of the instant litigation, Cohn participated by providing documents and took a deposition sought by Plaintiffs during discovery. The Court notes that Cohn, when he changed phones, managed to back up photos, but omitted saving text messages. The Court found sufficient reason that an adverse inference is warranted as to the missing Cohn text messages, and will be presumed against Cleopatra.