By: Tracy M. Evans, Esq., Associate, Saxon Gilmore & Carraway, P.A.

Tevans2-cropped-sToday, the use of personal mobile devices for business purposes has become standard practice. While the convenience and increased efficiency these devices afford users is certainly beneficial to businesses, concerns arise regarding preserving the data transmitted to and from these devices. Text messages sent from mobile devices for business purposes arguably create business records that a business may be required to preserve in the face of potential or pending litigation. The question of whether a business has a duty to preserve this data is currently unsettled and varies case by case.

In Florida, a party to a lawsuit must avoid “spoliation” of evidence, meaning a party cannot intentionally destroy, mutilate, alter, or conceal evidence. Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006). Generally, a duty to preserve evidence prior to filing a lawsuit only exists where there is a contract, a statute, or a discovery request that triggers the duty to preserve. Royal & Sunalliance v. Lauderdale Marine Center, 877 So. 2d 843, 845 (4th DCA 2004). There may also be a pre-suit obligation to preserve evidence if it is reasonably foreseeable that a lawsuit will be filed. Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005).

In terms of liability, Florida courts no longer recognize the spoliation of evidence as an independent cause of action. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005) (overruling Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984)). Rather, the consequences of failing to preserve evidence can take the form of severe sanctions in the litigation such as striking pleadings, imposing monetary penalties, or applying adverse inferences that may prove extremely detrimental to the offending party’s claims or defenses in the litigation.

As to an employer’s duty to preserve text messages from an employee’s mobile device, there is very limited Florida case law on the subject, but other states and federal courts provide some insight. The Southern District of Illinois recently found a company had a duty to ensure that its employees understood they were required to preserve text messages during a litigation hold, especially where the company’s own policies directed employees to utilize text messaging as a form of business communication. In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, Case No. 2385 (S.D. Ill. Dec. 9, 2013).). The company’s failure to prevent text messages from being automatically deleted from company-issued cell phones warranted sanctions.

Conversely, in Cotton v. Costco Wholesale Corp., Case No. 12-2731 (D. Kan. July 24, 2013), the court held the employer did not have “possession, custody, or control” over text messages sent or received by its employees where there was no evidence that the employer issued the cell phones, that the employees used the cell phones for any business purpose, or that the employer otherwise had any legal right to demand text messages from the employees’ personal cell phones.

A Pennsylvania appellate court refused to impose sanctions against defendants who deleted text messages from their phones where the defendants had routinely deleted text messages for storage space, and there was “no showing that the innocent cleanup of personal electronic devices to allow them to function was unusual, unreasonable or improper under the circumstances.” PTSI, Inc. v. Haley, No. 684 WDA 2012 (Pa. Super. Ct. May 24, 2013).

As these cases illustrate, whether an employer has a duty to preserve text messages on its employees’ mobile devices varies from case to case, driven by the specific facts. Unfortunately, there is presently no bright line rule to allow an employer to definitively determine if a duty to preserve data exists. In businesses where the use of mobile devices for business purposes is inevitable, employers should implement policies and procedures regulating the use of these devices for business purposes, including rules for preserving business-related data on these devices. In addition, employers should also consider implementing policies that provide the company with the right to access employees’ mobile devices to obtain and preserve business-related data if necessary. These preventative measures may help a business avoid sanctions for spoliation of evidence should a lawsuit arise that implicates the electronic data stored on employees’ mobile devices.

 

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