Caught in the Sauce: Papa John’s Founder’s Failure to Preserve ESI in Cellphones Leads to Curative Sanctions Despite Initial Preservation Efforts
Author: Michael V. Caracappa – Gibbons Law Alert
...” noticed Schnatter’s production did not contain the counterparts to messages collected from his assistant and a long-term employee.”…
…” Schnatter disclosed for the first time that he had a practice of routinely deleting his text messages. Opposing counsel also informed the court that they were aware Schnatter used “burner” phones and, eventually, sought leave to serve Schnatter with special discovery interrogatories. Schnatter’s answers revealed that he actually owned 11 phones.”…
…” noting static images (screenshots of certain texts taken by Schnatter) were an insufficient substitute for the native files that would have contained important metadata.”…
…” The court reasoned that, while Schnatter’s conduct was “concerning,” there was no reason to doubt he routinely deleted his text messages in an effort to preserve his privacy. The court highlighted that there was no evidence Schnatter selectively deleted his texts to gain a favorable litigation position, i.e., as Rule 37(e)(2) requires that he had an “intent to deprive [his adversary] of the information’s use in the litigation,” and noted some uncertainty in the scope of preservation obligations generally.”…
…” court held the appropriate remedy was allowing opposing counsel to present evidence to the jury about the missing text messages and instruct the jury that it may draw whatever inferences it deems appropriate from those facts.”…
In my experience, founders and C-level executives make the worst legal hold custodians. I have learned to review executive expense reports prior to supporting preservation interviews or issuing notices when possible. Too many execs shun email or messaging platforms that preserve communications. New generation technologies such as ModeOne can selectively preserve mobile via app or scheduled incremental collections while minimizing custodian impact.
All too often I see corporate legal departments deferring to execs and allowing the exec to cherry pick screen shots of ‘evidence’ without full device images. As Papa John’s opponents noticed, review platforms like Relativity’s short message viewer make missing messages easy to spot. If I had been playing defense expert, I would have analyzed the deleted messages to see if Papa John selectively deleted matter related messages vs. normal ones. I bet that could have supported the Rule 37(e)(2) sanction arguments buried in the opinion. Not that adverse inference is anything to sneeze at.