Authored by Gabriel Crafton and Scott St. Amand of Rogers TowersIn the era of Twitter and Instagram, it should come as no surprise that a party’s cell phone data, including text messages, may prove invaluable to an adverse party during the course of litigation. As with any other Electronically Stored Information (“ESI”), text messages are subject to a litigation hold, and, as a consequence, if the party fails to preserve the text messages, the party would likely be liable for spoliation and sanctions. A recent case out of the U.S. District Court for Colorado highlights the affirmative responsibility of a party in control of ESI to not destroy potential sources of evidence – whether a computer or a cell phone.
In the case of Christou, et al. v. Beatport, LLC, et al., former business partners (a nightclub owner and a DJ) had a falling out, and the club owner (Christou) sued the DJ (Roulier) under a myriad of theories arising out of Roulier’s alleged threats to fellow DJs that if they played in the Christou’s club, Roulier would not play or promote their music on the popular website “Beatport,” which Roulier had helped to create.