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    Court Says Text and Skype Messages Qualify as Evidence

    Jul 13, 2010
    In this licensing agreement litigation, the plaintiff alleged that the defendants failed to implement a litigation hold and spoliated electronic evidence.

    Passlogix, Inc. v. 2FA Tech., LLC, 2010 WL 1702216 (S.D.N.Y. Apr. 27, 2010). In this licensing agreement litigation, the plaintiff alleged that the defendants failed to implement a litigation hold and spoliated electronic evidence. The electronic evidence included e-mails, text messages, Skype messages, and network and computer logs. The defendants admitted destroying the items listed, but denied their relevance to the pending case.

    The court emphasized the importance of establishing litigation holds in order to suspend routine retention and destruction policies. In addition to deleting the electronic information, 2FA failed to issue a written litigation hold notice. In addition, the court found that the failure to preserve the computer and networks logs was intentional. The logs related to an investigation into allegations of anonymous and possibly spoofed e-mails relevant to the case. The investigator subsequently admitted to withholding the logs because of his “subjective belief that the logs would have appeared to point falsely to a 2FA employee as the author of the September 3 email.” In finding the deletion to be intentional, the court noted that “[t]he duty to preserve documents is meant to prevent these sorts of ‘judgment calls’ by litigants …”

    The court found the failure to preserve e-mails and text and Skype messages constituted gross negligence while the failure to preserve computer logs was intentional. Balancing the defendants’ “litigation conduct with its status as a small corporation,” the court determined that a $10,000 monetary fine was the appropriate remedy.

    This case brings home the fact that the expanding use of technology in business dealings today adds layers of complexity to litigation proceedings that would have been unheard of only a few years ago. Electronic communications enable businesses to reach out to customers in innovative ways. They can also pose a hazard to the company’s ability to defend itself in court, if not handled responsibly.

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