Preserve challenged ads/social media posts after receiving a C&D or risk sanctions

Distribution LLC v. Pep Research, LLC, No. 16CV2328-WQH(BLM), 2018 WL 3769162
 (S.D. Cal. Aug. 9, 2018) (magistrate judge)
A spoliation/false
advertising issue.  “While Defendants
produced some social media documents, the production did not include Facebook
or Twitter posts relating to the illicit products identified in the complaint.”
For a finding of spoliation, a party must show that “(1) the party with control
over the evidence had an obligation to preserve it at the time of destruction;
(2) the evidence was destroyed with a ‘culpable state of mind’; and (3) the
evidence was relevant to the party’s claim or defense.”
After plaintiff’s
demand letter and complaint, which identified the products and ads at issue, defendants
had an obligation to preserve relevant posts on their social media sites.  There was evidence of a culpable mental
state, where a deponent responded to a question about whether the deleted posts
had anything to do with this lawsuit, with “It’s possible. Actually, it was —
I think it had more to do with any copycat companies, law firms like yours
trying to file the same frivolous lawsuit.” When asked about deleting posts
related to marketing one of the products at issue, he responded, “I have the
right to do whatever I want to do with my Facebook account, regardless of a
lawsuit or not.” His declaration that no posts were deleted intentionally for
purposes of litigation/post-filing was inconsistent with his deposition
testimony and unsupported by evidence. Destruction after notice/negligence is
sufficent to be culpable.
Finally, the
evidence indicated that the deleted evidence was relevant to the claims as it
“include[d] advertisements, photos, marketing, and misleading statements at
issue in this action.” There was prejudice, because the plaintiff only has some
Facebook and Twitter posts, not all of them.  The appropriate sanction was an adverse
inference instruction that “the social media posts deleted were false
advertising of products that compete with Plaintiff.”  Monetary sanctions were unnecessary given such
an instruction.

from Blogger

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