Going Mobile: Recent Mobile Device Case Law Trends, Part 2

In our last post, we discussed notable case law disputes related to the relevance and accessibility of mobile device data, including requests for forensic examinations of mobile devices.

Disputes related to the relevance and accessibility of the data are one of the most common types of disputes regarding mobile devices. Another common type of dispute is typical with all sources of electronically stored information (ESI) – requests for sanctions. The duty to preserve in litigation extends to mobile device data, and courts frequently hold parties accountable in the event of the spoliation of that data. Additionally, there have been recent cases where parties tried to fabricate evidence from mobile devices, particularly text messages.

With that said, here are nine cases related to sanctions regarding mobile device data (two of them related to the same spoliation incident).

Recent Cases Involving Sanctions Requests Regarding Mobile Device Data

As the importance of mobile device data has risen in litigation in recent years, so has the number of cases where parties request sanctions related to discovery of that data. Here are the cases related to these disputes:

Rossbach v. Montefiore Med. Ctr.: This case illustrates the importance of metadata in evidence authentication. In this case, the plaintiff was found to have fabricated a text message exchange with her supervisor that she claimed proved she was sexually harassed. Part of the evidence that illustrated that the image produced was fabricated was the use of a version of an emoji that wasn’t possible to use with her version of iOS on her iPhone. The case was dismissed and a monetary sanction was assessed jointly and severally against the plaintiff and her counsel (the Second Circuit ultimately vacated sanctions against plaintiff’s counsel, but affirmed all other aspects of the ruling).

Gunter v. Alutiiq Advanced Sec. Sols., LLC: This case provides another example of a court determination of fraudulent text messages and the value of forensics services to identify the fraudulent evidence. Here, the District Judge actually increased the proposed sanction recommended by the Magistrate Judge, ordering plaintiff to pay $10,000 to defendant as partial reimbursement of costs associated with the engagement of forensic and expert witness services and dismissed the action with prejudice.

Jones v. Riot Hosp. Grp. LLC: This case shows that “an orchestrated effort to delete and/or hide evidence” can lead to terminating sanctions. Here, the Ninth Circuit Court of Appeals affirmed terminating sanctions for deletion of text messages by the plaintiff after she and one of the witnesses obtained new phones shortly after they were ordered to hand over their devices for imaging and never produced the earlier phones.

Hunters Capital, LLC, et al. v. City of Seattle: This case illustrates the importance of a prompt litigation hold. Here, the plaintiffs requested sanctions for the deletion of thousands of text messages from City-owned phones of City officials, including the mayor, police chief, and fire chief. The defendant’s delay of a month or more in issuing a litigation hold resulted in the loss of those messages when devices were damaged or wiped. The court issued adverse inference instructions sanctions against the defendant and also awarded “attorneys’ fees and costs (including expert-related costs) incurred as a result of the City’s spoliation of evidence” (which ultimately came to $600,000 as part of a $3.65 million settlement in the case).

In re Gold King Mine Release in San Juan Cty., Col., on Aug. 5, 2015: This case shows that even comprehensive efforts to ensure a complete litigation hold can lead to sanctions if important sources aren’t preserved. Here, the Court permitted the plaintiffs to introduce evidence of the Federal Parties’ spoliation of mobile device data at trial after they failed to preserve the devices of the on scene coordinators for a wastewater spill, even though they preserved texts on “approximately 500 cell phones”.

Skanska USA Civil Se. Inc. v. Bagelheads, Inc.: This case shows that a partial effort at preservation can still lead to sanctions – in more than one case. Here, the Eleventh Circuit affirmed adverse inference and costs and fees sanctions for Skanska for the destruction of the data from five out of thirteen of its custodians’ cell phones. Unfortunately for Skanska, this isn’t the only case where this spoliation led to sanctions.

In re Skanska USA Civil Se. Inc.: In this case from 2021, the Court called their failure to preserve data from five cell phones a “textbook case of spoliation” and also awarded adverse inference and monetary sanctions.

Maziar v. City of Atlanta: This case shows that sanctions are still possible even without a finding of intent to deprive. Here, the Court, while finding that the defendant’s text message spoliation was not in bad faith (rejecting the plaintiff’s citation of the Skanska case above), found that the plaintiff was prejudiced under FRCP Rule 37(e)(1), so the Court ordered denial of the defendant’s pending motion for summary judgment and attorneys’ fees and costs for the plaintiff associated with prosecuting the sanctions motion.

Jennings v. Frostburg State Univ.: This case shows that not all spoliation of mobile device data leads to sanctions. Despite the Court’s finding that the duty to preserve began in November 2018 and that the defendant did not implement a litigation hold until “early 2021”, the Court denied the plaintiff’s request for sanctions for the erasure of cell phones once two key custodians left the defendants’ employment, finding no intent to deprive.

Lessons Learned

The first two cases illustrate the importance of forensic examination and requesting native forms of the data to maximize your ability to authenticate the evidence produced.

The third case illustrates what can happen when a party shows a clear pattern of text message deletion, along with efforts to avoid detection in forensic examination by switching to a new device – actions that can often justify terminating sanctions.

The next four cases (two of which involve Skanska) illustrate how a partial effort in preserving mobile device data isn’t enough – significant sanctions can still occur if the Court feels that the spoliation was due to an intent to deprive. Sanctions are always worth pursuing if spoliation occurs.

The eighth case illustrates that sanctions can still occur even if intent to deprive isn’t demonstrated. Showing prejudice from the loss of evidence can still lead to sanctions under FRCP Rule 37(e)(1).

And the final case shows that courts aren’t always going to sanction parties that spoliate mobile device evidence – even in cases where the party egregiously fails to implement a timely litigation hold. It’s important to provide as much evidence as possible to illustrate both prejudice under FRCP Rule 37(e)(1) and intent to deprive under FRCP Rule 37(e)(2).

In case you missed part one on mobile device case law trends, you can read it here, or head back to the beginning of this series to explore how discovery of data from mobile devices has become more important, while also one of the most challenging forms of ESI to preserve and collect. Next time, we’ll discuss the traditional challenges that have impeded organizations from streamlining mobile device collection.

For more regarding Cimplifi forensics & collections capabilities, click here.