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On July 22, 2015, the District Court of the Southern District of California granted in part a motion from Defendants to give an adverse inference instruction to a jury regarding text messages from employees that were not properly preserved. NuVasive, Inc. v. Madsen Medical, Inc., 2015 WL 4479147 (S.D. Cal., July 22, 2015).

Defendants, Madsen Medical, Inc. (MMI), alleged that Plaintiff, NuVasive, failed to preserve text messages from four employees who were key to the litigation. The Defendants argued that the text messages "could have been evidence of secret coordination between NuVasive and former MMI employees" to essentially poach MMI's employees. Defendants had notified NuVasive of its duty to preserve evidence, including text messages of the four employees, as early as August 2012. However, the Court found that "NuVasive clearly did not take adequate steps to make sure that its employees complied with the litigation hold." One employee wiped his phone clean before it could be imaged. The second employee was not asked to turn over his phone until January 2014, at which time NuVasive's attorneys discovered that all of his text messages prior to September 20, 2012 were missing. The third employee's text messages were lost because he had turned in his phone for an upgrade on two occasions and, pursuant to company policy, the phones were wiped clean. The fourth employee testified he did not provide his phone to NuVasive until 2013, and that he may have deleted relevant text messages.

With this information, the Court concluded that NuVasive did not enforce compliance with the litigation hold. Using the standard for determining sanctions for spoliation, the Court allowed an adverse jury instruction that stated that NuVasive failed to prevent the destruction of evidence for MMI's use, and that the jury may infer that the evidence destroyed was favorable to MMI and unfavorable to NuVasive. The Court noted that MMI should have also taken steps to preserve the text message of its two former employees while still employed at MMI and so declined to grant MMI's request for attorneys' fees and costs.

This case highlights the need to ensure compliance with a litigation hold as to all potential sources of evidence. The increased use of text messaging requires vigilance to ensure that mobile devices, including personal mobile devices that may have information relevant to the litigation, are preserved and imaged in a timely manner.