Burden of Proof: Sanctions for Intentional Deletion of Text Messages

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July 20, 2021
The Perils of a Misfocused Preservation Letter
July 22, 2021

In a prior blog, “Burden of Proof of Spoliation,” I noted District of Maryland authority holding that: “Absent guidance from the Fourth Circuit, ‘the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference is sought.”

In Fed. Trade Comm’n v. Vyera Pharms., LLC, 2021 WL 2206307, at *2 (S.D.N.Y. June 1, 2021), the court wrote:

Rule 37(e)(2) does not set out the standard by which a party seeking sanctions must prove “intent to deprive.” In general, a party seeking sanctions based on spoliation is required to meet a preponderance of the evidence standard. See, e.g., Klipsch Grp., Inc. v. ePRO E-Com. Ltd., 880 F.3d 620, 628 (2d Cir. 2018). Many district courts in this Circuit have required parties seeking sanctions under Rule 37(e)(2) to meet the “clear and convincing evidence” standard. See, e.g., Perla Bursztein v. Best Buy Stores, L.P. & Best Buy Co., Inc., No. 20CV00076(AT)(KHP), 2021 WL 1961645, at *8 (S.D.N.Y. May 17, 2021); Fashion Exch. LLC v. Hybrid Promotions, LLC, No. 14-CV-1254 (SHS), 2021 WL 1172265, at *6 (S.D.N.Y. Mar. 29, 2021); Charlestown Cap. Advisors, LLC v. Acero Junction, Inc., 337 F.R.D. 47, 67 (S.D.N.Y. 2020); CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 499 (S.D.N.Y. 2016).

 Id. at *2 (Emphasis added).

Vyera presented an easy decision.  Sanctions were sought because a corporate executive testified in deposition that he had not deleted texts and recanted through counsel after a forensic examination of his Blackberry.  Previously, he turned in his corporate iPhone, which was backed up to iCloud, for the Blackberry, which was not backed up.  Although the duty to preserve arose in 2015, the company did not notify the executive of the litigation hold until 2018.

This constituted intentional misconduct.  As a sanction, the court precluded the executive from testifying and barred the company from introducing documents that he authored.  It did not expressly state which burden of proof it applied.