Earlier this year, the duty to preserve text messages arose in the sexual harassment case of Calderon v. Corporacion Puertorriqueña de Salud. During discovery, when the defendants requested the plaintiff’s text messages, only a portion was submitted with the claim that the rest had been deleted. What followed was a call for a spoliation sanction and dismissal of the case.

Following the incomplete submission of texts by the plaintiff, Jonathan Polo Echevarria (“Polo”), the defendants subpoenaed the phone company for a full record. It revealed that the plaintiff had failed to produce more than a few dozen potentially relevant text messages.

The court found the same and determined that when the plaintiff, Polo, forwarded some text messages to his email address for printing, he understood the relevancy of those messages against the defendant, Rodriguez, reasonably foresaw the potential for litigation and that spoliation had indeed occurred, though it did not rise to the level of bad faith.

“At a bare minimum,” said the court. “Polo’s decision not to forward or save the unproduced texts and photos from prpng@hotmail.com constitutes ‘conscious abandonment of potentially useful evidence’ that indicates that he believed those records would not help his side of the case.”

Once spoliation had been established, the court moved on to consider whether dismissal of the case was appropriate. The court determined it was not but that an adverse inference instruction at trial against the plaintiff regarding those three dozen messages certainly was.

The court reminded both parties that a “party has a general duty to preserve relevant evidence once it has notice of or reasonably foresees litigation; failure to preserve the evidence constitute spoliation.”

No matter if it’s LOL or WTH, this case reminds us that texts are ESI and must be preserved when required.