United States: The Lynyrd Skynyrd Texting Case: Spoliation And Non-Party Texts

Last Updated: February 22 2018
Article by Owen Masters

It was a tragedy. The 1977 plane crash that killed Ronnie Van Zant and Steven Gaines almost ended the band Lynyrd Skynyrd forever. In the wake of the crash, the survivors swore an oath never again to perform as "Lynyrd Skynyrd." That oath made its way to court where it would be memorialized in a 1988 Consent Order outlining how and when surviving members could use the name "Lynyrd Skynyrd."  In 2016, Cleopatra Records and its affiliate film studio Cleopatra Films (together "Cleopatra") hired a writer, Jared Cohn, to write and direct a screenplay about the plane crash. The studio secured the cooperation of one of the band's few surviving members, Artimus Pyle. Other heirs to the Lynyrd Skynyrd name, including members of the Van Zant family and original band member Gary Rossington, did not approve and threatened Cleopatra with legal action based on Mr. Pyle's involvement. Cleopatra and the Van Zants traded barbs, while Cleopatra distanced itself from Pyle to try and get around the 1988 Consent Order. The two sides could not resolve their disagreement and in May 2017, the Van Zants and others sued to block distribution of the film.

Behind this headline drama, a creeping legal problem was unfolding: allegations of lost documentary evidence. Artimus Pyle helped Cleopatra and Cohn with the film script. But Pyle did not have a computer, so he conducted all his business on his phone, through calls and texts. He and Cohn traded texts discussing the film, but the court would never see these texts. Plaintiffs did not name Mr. Cohn as a defendant; rather they issued him a subpoena. And sometime between the filing of the case, his subpoena, and his deposition, Mr. Cohn got a new phone. He saved and transferred his photos to his new phone, but not his texts.

The plaintiffs argued they were entitled to an adverse inference because Cohn had deliberately destroyed his text messages after getting a subpoena. These texts could have been central to their case, and plaintiffs had tried but failed to get the texts from Pyle. Defendants argued, among other things, that they could not be sanctioned for Cohn's conduct because they had no control over Cohn's texts. And they argued that even if they had control, plaintiffs suffered no prejudice from Cohn's conduct because plaintiffs could have gotten the texts from Pyle. The entire case went from filing to decision in just over three months, so the court found that plaintiffs had done enough to support their prejudice argument by just trying to get Pyle's texts. The court awarded an adverse inference against Cleopatra, saying it was "common sense" Cohn's texts were in Cleopatra's control.

This holding could have significant ramifications for how courts across the country will examine text message spoliation. Texts present uniquely complex legal concerns. Now that texting is more mainstream, companies will no doubt discover their employees texting for work. When confronted with litigation, many managers may wonder: is a company required to produce texts on its employees' personal phones, and when must the company preserve texts held by third-parties?

The current standard for document preservation come from another S.D.N.Y. case. Under the oft-cited Zubulake standard, the duty to preserve extends to "any documents or tangible things . . . likely to have discoverable information that the disclosing party may use to support its claims or defenses." 220 F.R.D. 212, 217 (S.D.N.Y. 2007). Parties have a duty to preserve all Zubulake information over which they have "control." And courts can take a broad reading of control. Control can include documents or information when "the party has the practical ability to obtain the documents from another, irrespective of his legal entitlements." In re NASDAQ Mkt. Makers Antitrust Litig.

The Van Zant court took a broad view of "control," finding that Cleopatra had "control" over Cohn's texts, even though he was not a Cleopatra employee, was not using a work phone, and was not a named party to the case.  The court offered a list of reasons: (i) Cohn contracted with Cleopatra, (ii) he worked closely with Cleopatra, (iii) he "participated by providing documents and took a deposition," and (iv) he had a financial interest in the film at the center of the case. Van Zant, 270 F. Supp. 3d at 669-70. But these reasons suggest the court was motivated by something else. Cohn bought a new phone immediately after plaintiffs filed their case.  He salvaged his photos but not his texts.  And the court considered this behavior sufficient to warrant sanctions.

Cleopatra also knew that Pyle did all his business over the phone, but did not take action to ensure Cohn kept his business texts. Few cases go from filing to decision in three months, and most non-parties are not as involved with a case as Cohn. Add to this Cohn's suspect behavior, and the court's decision may be more limited than it first appears.

However, disputes about control of texts and preservation duties are now critical evidentiary issues. Content, not location, determines whether a text should be preserved. Whether employees use company phones or personal devices, companies should consider what they can do to preserve texts that might be relevant to pending or potential litigation. The Van Zant decision shows that courts in the Second Circuit will employ an expansive reading of control. Under this view, parties will sometimes have legal control over a non-party's texts and a duty to preserve them.  With the increasing use of texts, parties and their counsel should include evaluation of texts and possible preservation obligations as part of their standard operating procedure for initial case assessment and response.

The Lynyrd Skynyrd Texting Case: Spoliation And Non-Party Texts

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions