Case Law

Court Issues Sanctions for Loss of Cell Phone Data by Non-Party, Holding that “Control” for FRCP 37(e) Applies to Non-Parties

New York

Ronnie Van Zant, Inc. v. Pyle, 2017 U.S. Dist. LEXIS 138039 (S.D.N.Y. Aug. 28, 2017) In this action, the plaintiffs sought adverse inference sanctions against the defendants for the loss of ESI that occurred when a non-party to the action obtained a new cell phone. This case arose from a dispute over the use of names, images and likenesses in a documentary about the band, Lynyrd Skynyrd, and the historic 1977 plane crash killing some of the band’s members. Weeks after the plaintiffs filed suit and following the end of the filming of the at-issue documentary, the film’s director – a non-party in the suit—switched phones, resulting in communications with one of the defendants to be lost. The court, citing FRCP 37(e), granted the plaintiffs’ request for adverse inferences, and held that the director, although not a party to the action, was under the control of the defendants for purposes of the Rule. In finding that the non-party was under the control of the defendants, the court noted that the director worked closely with the defendants, provided documents for discovery, and that he himself also had a financial stake in both the film and the outcome of the lawsuit. The court stated that “control” for the purposes of FRCP 37(e) is to be interpreted “broadly,” and while determining control is not “an exact science,” it involves the use of “common sense.”

Keywords: Cell Phone, Rule 37(e), Inherent Power, Text Messages, Spoliation, Control, Intent to Deprive, Sanctions, Non-party