This article explores what one defendant did wrong when it suspected the plaintiff deleted relevant text messages and how the lessons learned from this case can be applied far beyond missing text messages.

In Hardy v. UPS Ground Freight, Inc., 2019 WL 3290346 (D. Mass. July 22, 2019), Hardy alleged he was wrongly terminated by the defendant, UPS. UPS included with its requests for production any text messages discussing the lawsuit or the issues involved in the lawsuit. Hardy produced text messages in response but revealed during his deposition that he no longer had certain text messages he exchanged with a current UPS employee, because they had taken place a long time before.

In response to the missing text messages, UPS wanted to forensically image Hardy's entire cellphone and filed a motion to compel. UPS moved for this remedy, not only because of the known missing text messages but to determine whether there were any other responsive text messages that Hardy had failed to produce. UPS also argued that the forensic image would be an appropriate sanction for Hardy's conduct. As the title of this article implies, the motion was denied. In making its ruling, the court weighed "whether the examination [would] reveal information that is relevant to the claims and defenses" against "the cell phone owner's compelling privacy interest in the contents of [their] cell phone." While not all spoliation cases will involve such a compelling privacy interest, or any at all, there still are many lessons to take away from this ruling.

Diving a little deeper into the ruling itself first, the court considered the following factors in ruling against UPS:

1. "Whether the party requesting the forensic imaging has shown that the data sought likely can be recovered;"
2. "Whether a less invasive means of obtaining the evidence exists";
3. Whether some means or methods were considered to protect the privacy concerns; and
4. Whether a procedure as sweeping as a forensic image is really necessary—the court described this as a relevancy inquiry.

Each of these factors is examined briefly.

1. No evidence was provided that the text messages were likely to be recovered via forensic imagining. Ironclad proof was not expected by the court, but "some effort" was needed, perhaps in the form of expert testimony or an affidavit.
2. UPS also failed to show that a less-intrusive means for obtaining the text messages existed. The court noted that UPS didn't provide a satisfactory explanation for its failure to obtain the text messages from the current UPS employee who was having the exchange with Hardy.
3. No attempt was made to protect Hardy's privacy or privileged information. The sweeping contents of a forensic image in the hands of UPS was unacceptable, given what was at stake. For example, no consideration was given to using a third-party to filter the data, and no other safeguards seem to have been considered.
4. UPS was unable to provide sufficient evidence that there were text messages beyond the ones at the center of the dispute that hadn't been produced and unable to establish that the missing texts were central to the claims and defenses.

Some of you might be thinking at this point: Why does the burden appear to be on UPS, when it was Hardy who admitted to not producing some potentially relevant text messages? But the mistakes made by UPS in this matter are all too common in this area, so let's explore four things that could have been done, whether the issue is missing texts or any other type of discovery material that could go missing.

1. Thorough deposition questioning. It's extremely important to cover the potential spoliation from every possible angle while you have access to the witness. Find all the contours of the missing data, understand in detail why the data is missing and what the witness understands the data would show if produced.
2. As with all discovery, make narrowly tailored requests. Overbroad requests or remedies get beaten back all of the time. UPS immediately requested the nuclear option—the forensic image. If that's going to be the request, there simply needs to be more than what was presented here. Focus on what you need, not what would be nice to have.
3. Sanctions are really hard to get. A review of case law regarding discovery sanctions quickly crystallizes this point. Federal Rule of Civil Procedure 37(e) sets a high bar when the issue is failure to preserve evidence: if there is prejudice, the remedy is "measures no greater than necessary to cure the prejudice," and only if there is an "intent to deprive" will anything approaching punitive sanctions result.
4. Privacy is an important factor to consider. The court pointed out in a footnote that UPS demonstrated a "startling lack of concern for Plaintiff's compelling privacy concerns" when it "showed up at [Hardy's] deposition with a forensic examiner prepared to image [the] cell phone then and there without any order from the court authorizing it to do so."

To distill this to a single thought: In instances of potential spoliation, make reasonable requests that are targeted, well-thought-out and strike to the heart of the matter. At the end of the day, discovery is grounded in reasonableness, not perfection.

Todd Heffner is a construction litigator and eDiscovery specialist with Jones Walker in Atlanta.