As many readers are aware, Commonwealth v. Fowler, No. 1888CR000598 (Mass. Dist. Ct. Nantucket filed Dec. 20, 2018), a criminal prosecution, and a related civil action, Little v. Fowler, No. 1975CV00022 (Mass. Sup. Ct. Nantucket filed June 26, 2019), are matters in which, respectively, the commonwealth of Massachusetts and a plaintiff brought criminal charges and a civil complaint against actor Kevin Spacey (whose legal name is Kevin Spacey Fowler), claiming that in summer 2016 Spacey sexually assaulted an 18-year-old employee of a Nantucket restaurant by first plying him with alcohol and then groping him at the restaurant. The allegations led to Spacey being removed from a starring role in a hit TV series and a film studio withdrawing its request that he star in an upcoming film. In July, however, the Massachusetts civil action was dismissed with prejudice and prosecutors dropped the criminal charges because of the alleged spoliation of digital evidence—specifically, the complainant's cellphone—and relatedly, as shall be explained, the plaintiff/complainant's invocation of his Fifth Amendment protections against self-incrimination. In this month's article I will review the matters and discuss whether there was spoliation and the implications of the reasoning leading to the conclusion that there was.

The Civil and Criminal Matters

Spacey was on the island of Nantucket, Massachusetts, in summer 2016. Per the allegations of the complainant, an 18-year-old employee of a Nantucket restaurant, Spacey bought him alcohol and then, without the complainant's consent, groped him at the restaurant. In response, Spacey, through counsel, asserted that the complainant had told Spacey that he was 23, and the encounter was a "mutual and consensual flirtation."

Spacey's counsel demanded discovery of the complainant's mobile phone, seeking text, video and Snapchat data from the date of the incident to the date of the discovery request.