In NuVasive v. Madsen Medical, No. 3:13-cv-02077-BTM-RBB (S.D. Cal. July 22, 2015), the defendants moved for sanctions, claiming spoliation for destruction of a type of electronically stored information that has grown quite prominent in personal communications but not as much in business ones: text messages. The opinion illustrates how, even as the technology grows, the legal issues remain tangled.
Kris Madsen and Madsen Medical Inc. sought sanctions for failure to preserve the text messages of four former MMI sales representatives who left for NuVasive and who were, per MMI’s counterclaims and claims in another action, conspiring with NuVasive to leave MMI (and take its business) while still employed there: Stephen Kordonowy and Ed Graubart, prior to 2014; Frank Orlando, prior to 2013; and Jeff Moore, prior to Sept. 20, 2012. The defendants contended that these text messages could have been evidence in support of their claims. MMI sought an adverse inference instruction from NuVasive’s destruction of evidence, as well as $10,000 in attorney fees and costs.
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