The Massachusetts Superior Court recently punished litigants for failing to preserve emails and text messages even though litigation did not appear likely when those materials were lost or destroyed.  In JFF Cecilia LLC, et al. v. Weiner Ventures, LLC, et al., the trial and appellate courts clarified the rules applicable to spoliation and provided a reminder of the harsh consequences of losing or destroying evidence.[1]  The takeaway is simple: preserve all evidence that might matter in court, even if a lawsuit appears unlikely.

The basic idea of spoliation is easy to grasp.  Fairness dictates that if you lose or destroy materials that could be important in court, you should be penalized.  In legal terms, “[t]he doctrine of spoliation permits the imposition of sanctions and remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced.”[2] 

Determining when spoliation occurs is not so easy.  To complicate matters, Massachusetts courts have historically applied seemingly inconsistent rules.  Some cases indicated that the duty to preserve evidence arose when litigation was merely “possible.”  Others suggested that only when litigation was “likely” did the duty to preserve kick in.  The difference between “possible,” and “likely” litigation is stark and has a substantial impact on the duty imposed on prospective litigants.

In JFF Cecilia LLC, the defendants either lost or destroyed text messages and emails about a business dispute after receiving a pre-suit letter from plaintiffs’ counsel.  Despite the letter from counsel, other communications exchanged around that time suggested that litigation was unlikely.  The plaintiffs later sued and filed a motion for sanctions on alleged spoliation grounds.  Initially, the trial court denied the motion because the defendants would not have thought it “very likely” they would be sued when they lost or destroyed the evidence.  But, a single justice of the Massachusetts Appeals Court ordered the trial court to reconsider the motion and determine whether the defendants should have known that litigation was “possible” rather than “likely.”  Applying this broader standard, the trial court granted the plaintiffs’ motion and ruled that, at the upcoming trial, the jury will be allowed to hear evidence of spoliation and may infer that the unavailable materials favored the plaintiffs.

JFF Cecilia LLC serves as a cautionary tale.  To avoid a similar punishment, anyone who qualifies as a “possible” litigant should take steps to preserve potentially relevant materials.  Who is a possible litigant?  Certainly, anyone who receives correspondence from an attorney about a business dispute or engages counsel to send such a letter.  Beyond that, it is difficult to say with certainty.  Companies should take simple preservation measures at even the slightest possibility of a legal dispute.  If the materials are emails and text messages, as in JFF Cecilia LLC, then simple, low-cost measures might include screenshotting text messages, archiving emails, and disabling automatic email deletion protocols.