Earlier this year, a federal district court issued a decision sanctioning defendants in an antitrust suit for failure to preserve their text messages. The case serves as a reminder that parties should carefully preserve relevant information, including information that may be contained on handheld devices.

In Christou v. Beatport, LLC, 2013 WL 248058 (D. Colo. Jan. 23, 2013), the plaintiff sought an adverse inference sanction because defendants failed to preserve text messages on a key witness’s iPhone. Christou involved allegations that the defendants sought to deter certain A-list disc jockeys from playing at competing nightclubs. The plaintiff, a competing nightclub, filed the case in 2010 and at that time served a litigation hold letter directing defendants to preserve several categories of information, including text messages. The court found that defendants failed to take any steps to preserve text messages on the iPhone of a key witness, who was a talent booker for defendants. Worse, the witness lost his iPhone with text messages saved on it around the time that the discovery requests were issued. The plaintiffs thus moved for spoliation sanctions, asking the court to issue an adverse inference. Defendants claimed that any text messages that may have been on the witness’s iPhone were not relevant to the matter because the witness had testified that he did not book talent by text message.

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