WWW. NYLJ.COM VOLUME 258—NO. 65 TUESDAY, OCTOBER 3, 2017 FEDERAL E-DISCOVERY Party Sanctioned for Spoliation By And Of Non-Party’s Text Messages H. Christopher Daniel J. Boehning Toal n Ronnie Van Zant v. Pyle, 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017), a court in the Southern District of New York recently made some notable findings relating to spoliation and Icontrol of text messages. Members of the Southern rock band Lynyrd Skynyrd were involved in a char- ter plane crash in 1977. Lead singer Ronnie Van Zant and guitarist/vocalist Steven Gaines died in the crash, along with Gaines’s sister, a crew member, and the two pilots. Other band members, including drummer Artimus Pyle, were ROCKMAN injured, but survived. Johnny Van Zant and Artimus Pyle, former drummer of Lynyrd Skynyrd. During a reunion and tribute tour com- memorating the 10-year anniversary of to the consent order, and represented exchange receive 5 percent of the film’s the crash, the surviving band members by counsel throughout. net receipts. and Ronnie Van Zant’s widow disagreed In early 2016, an independent record In response to press releases highlight- over the use of the Lynyrd Skynyrd label’s film division, Cleopatra Films, ing Pyle’s participation in the upcom- name. The resulting lawsuit in 1988 decided to make a feature film about the ing movie, the plaintiffs in the instant ended with a Consent Order restrict- band and the 1977 plane crash. Cleopa- action sent a cease and desist letter to ing “how the parties in the 1988 Action tra hired director and screenwriter Cleopatra, noting the restrictions of the could use the name Lynyrd Skynyrd, the Jared Cohn to write and direct the firm. Consent Order to which Pyle was a signa- name, images and likeness of Van Zant Although not an employee, Cohn was tory and which the plaintiffs provided and Gaines, or the history of Lynyrd paid by and reported to Cleopatra. Soon to Cleopatra. Despite this, Cleopatra Skynyrd.” Van Zant, at *2. Pyle was a thereafter, Cohn contacted Artimus Pyle continued to work on the film with the defendant in the 1988 action, a signatory about participating in the film, which assistance of Pyle, who “regularly texted led to a series of meetings discussing or called Cohn to relay historical infor- H. CHRISTOPHER BOEHNING and DANIEL J. TOAL are his involvement in the movie. Among mation,” provided feedback on issues litigation partners at Paul, Weiss, Rifkind, Wharton other contributions, Pyle was to nar- such as casting and costumes, and had & Garrison. ROSS M. GOTLER, e-discovery counsel, and LIDIA M. KEKIS, e-discovery attorney, assisted rate the film, make a cameo appearance, “regular and factually-focused interac- in the preparation of this article. and contribute an original song, and in tions” with Cleopatra. Id. at *5. In some jurisdictions, this reprint may be considered attorney advertising. Past representations are no guarantee of future outcomes. TUESDAY, OCTOBER 3, 2017 On May 5, 2017, after an article in 37(e) applies in this matter, it saw no court found that it was satisfied with the Variety described the ongoing film need to rely on such powers. plaintiffs’ unsuccessful efforts in trying production, this lawsuit against Cleopa- Cleopatra argued that it should not to obtain the texts from him, especially tra and Pyle alleging violations of the be sanctioned for the actions of Cohn, since he “has made minimal appearance Consent Order was filed by the plaintiffs, a non-party, whose phone, according to and has not produced any documents in including surviving band member Gary Cleopatra, was not in its legal control. this litigation.” Id. Additionally, noting Rossington, current band lead singer The court disagreed. Citing precedent the potential value of the destroyed text Johnny Van Zant (brother to Ronnie Van in applying the Second Circuit’s broad messages and the resulting prejudice to Zant), and representatives of the estates “practical ability” standard for legal con- the plaintiffs, the court stated that the of deceased band members. Soon there- trol, the court found that “[d]ocuments text messages would have spoken to “the after, “in mid-May 2017, following the are considered to be under a party’s con- quality of interaction between Pyle, the end of filming, Cohn switched cell phone trol ‘if the party has the practical ability Consent Order’s signatory, and Cohn, providers and, consequently, acquired to obtain the documents from another, the principal writer and singular director a new cell phone. Although certain data irrespective of his legal entitlement.’” of the Film, a relationship that evidence on Cohn’s old phone was backed-up, The court noted that Cohn was in con- established was principally developed such as pictures, other data was not tract with Cleopatra to work on the firm, through text messages.” Id. preserved, such as Cohn’s text mes- worked closely on the film for over a year, Finally, the court determined that sages, including those sent and received aided in discovery in the instant action Cohn’s actions with his phone after the from Pyle.” Id. at *7. The plaintiffs filed by providing documents and taking a plaintiffs filed suit, getting a new phone a motion for spoliation sanctions for and backing up pictures but not text Cohn’s actions in losing the text mes- messages, “evince the kind of deliberate sages, specifically requesting that the ‘Van Zant’ demonstrates that behavior that sanctions are intended to court issue an adverse inference sanc- electronically stored informa- prevent and weigh in favor of an adverse tion against the defendants under Fed- tion is more than just email and inference.” eral Rule of Civil Procedure 37(e) or the that parties should thoughtfully The court granted the plaintiffs’ spolia- court’s inherent authority. tion sanctions motion, imposing the sanc- Quoting Rule 37(e), the court wrote consider and manage informa- tion of an adverse inference regarding that it may sanction a party “’[i]f elec- tion such as text messages as the text messages. Ultimately, the court tronically stored information that should part of their preservation and granted the plaintiffs a permanent injunc- have been preserved in the anticipation e-discovery efforts. tion against Cleopatra as to the film. or conduct of litigation is lost because Van Zant may serve to further evolve a party failed to take reasonable steps deposition, and had a financial interest post-Rule 37(e) sanctions law in the Second to preserve it, and it cannot be restored in the action “since he is entitled to a Circuit. It is a reminder to parties of the or replaced through additional discov- percentage of the Film’s net receipts, expansive notion of control in the circuit ery.’” Additionally, “[w]here the party which would be zero should Plaintiffs and that behavior by parties or even non- that failed to preserve the electronically prevail.” Id. at *9. Thus, the court con- parties with information in a company’s stored information … ‘acted with the cluded that “while Cohn is a non-party, legal control can have a potentially sig- intent to deprive another party of the his text messages were, practically speak- nificant impact on the outcome of a mat- information’s use in the litigation,’ the ing, under Cleopatra’s control” and that ter. The decision also demonstrates that Court may ‘instruct the jury that it may “’common sense’ indicates that Cohn’s electronically stored information is more or must presume the information was texts with Pyle were within Cleopatra’s than just email and that parties should unfavorable to the party’ or ‘dismiss the control, and in the face of pending litiga- thoughtfully consider and manage infor- action or enter a default judgment.’” In a tion over Pyle’s role in the Film, should mation such as text messages as part of footnote, the court observed that even have been preserved.” Id. their preservation and e-discovery efforts. with Rule 37(e) in place, a number of In response to Cleopatra’s argument Reprinted with permission from the October 3, 2017 edition of the NEW YORK courts continue to recognize their inher- that the plaintiffs could have obtained LAW JOURNAL © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 ent powers to sanction, but since Rule the text messages directly from Pyle, the or [email protected]. # 070-10-17-02.