In an order dated January 16, 2014 in the district court case Calderon v. Corporacion Puertorrique A De Salud, 2014 WL 171599 (D. Puerto Rico), plaintiff has filed a lawsuit against his employer alleging discrimination claims under Title VII. The defendants, after receiving plaintiff discovery production, subpoenaed a third party telephone company for phone and text messages.
Part of the third party production included evidence that certain text messages were missing from the plaintiff ESI production. (The content of the text messages was not produced; only that certain text messages had been sent and received from his telephone was disclosed by the third party telephone company.) Defendants sought a dismissal of plaintiff’s lawsuit as a sanction for the alleged spoliation.
The court agreed that spoliation had occurred, as the texts were deleted after the record showed plaintiff reasonably anticipated litigation and therefore had a duty to produce relevant evidence. “At a bare minimum, [plaintiff’s] decision not to forward or save the unproduced texts and photos from [another party] constitutes ‘conscious abandonment of potentially useful evidence’ that indicates that he believed those records would not help his side of the case.”
However, the court declined to enter defendant’s request to dismiss the case as too extreme. Instead, the court believed the proper sanction was an adverse inference instruction. The court noted the fact that plaintiff produced some of the texts from that time frame, but not all, which indicated he knew that those texts may have been unfavorable to his side of the case.