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Court Denies Sanctions for Deletion of “Smoking Gun” Email, Grants Defendants’ Motion for Summary Judgment – eDiscovery Case Law


In the case In re Text Messaging Antitrust Litig., 08 C 7082, MDL No. 1997 (N.D. Ill. May 19, 2014), Illinois District Judge Matthew F. Kennelly not only denied the plaintiffs’ request for an adverse inference sanction against the defendants for destroying emails, but also granted the defendants’ motion for summary judgment, as the plaintiffs failed to provide any supporting circumstantial evidence to meet their burden of proof.

The plaintiffs filed this suit on behalf of all those who purchased text-messaging services from AT&T, Sprint, T-Mobile, and Verizon Wireless, alleging that these providers, along with defendant CTIA-The Wireless Association, conspired to fix prices for Text Messaging Services in violation of section 1 of the Sherman Act.  On September 9, 2008, shortly after the last carrier increased text messaging rates, Senator Herbert Kohl, chairman of the antitrust subcommittee of the United States Senate Committee on the Judiciary, sent a two-page letter to the chief executive officers of the four carrier defendants "to express my concern regarding what appear to be sharply rising rates your companies have charged to wireless phone customers for text messaging”. 

A day later, The Wall Street Journal published an article (Text-Messaging Rates Come Under Scrutiny) regarding Senator Kohl’s investigation.  That same day a T-Mobile employee sent the text of the article via email to several individuals, including T-Mobile employees Adrian Hurditch, then the company's vice president of services and strategic pricing, and Lisa Roddy, then the company's director of marketing planning and analysis, but the subsequent thread of emails between Hurditch and Roddy was deleted.  The plaintiffs claimed that once Senator Kohl began contacting wireless carriers, T-Mobile had a duty to preserve all relevant electronically stored information and their failure to preserve and produce the emails reflected its “willfulness, bad faith, or fault” and warranted sanctions.

Judge Kennelly “agree[d] that plaintiffs have shown that T-Mobile's employees likely deleted the e-mail(s) intentionally and that they did so for the purpose of concealing the e-mail's contents. Nonetheless, plaintiffs have not shown that the actions of the T-Mobile personnel involved concealment of information that meets the requirement of being ‘adverse’ to T-Mobile. Specifically, the record does not reflect that Hurditch, the sender of the original e-mail that was deleted and the person who called T-Mobile's price increase ‘collusive,’ was in a position to have knowledge of or participate in any collusion between the wireless carriers.”  As a result, Judge Kennelly declined to order sanctions against T-Mobile for deletion of the e-mail or e-mails.

The plaintiffs also claimed that another defendant, CTIA destroyed emails and cleared the laptop profile of CTIA’s Head of Wireless Internet Development, but, because the plaintiffs did not provide any evidence that would support an inference that the missing information was adverse, their request for sanctions was again denied.

With regard to the defendant’s motion for summary judgment, the plaintiffs argued that Hurditch’s email to Roddy on September 10, 2008, with a reference to collusion, is a “smoking gun.”  However, Judge Kennelly stated that “Hurditch's status as well informed within his company and as ‘an active mentor’ to Roddy do not qualify him as having knowledge of a conspiracy”; therefore, “there are too many unsupported steps in the logic required to permit a reasonable inference that Hurditch was aware of a conspiracy”.  With no other supporting circumstantial evidence, the plaintiffs failed to meet their burden of proof to survive the motion for summary judgment; therefore, Judge Kennelly granted the defendant’s motion for summary judgment.

So, what do you think?  Should a spoliation sanction have been issued against the defendant who “likely deleted the e-mail(s) intentionally”?  Please share any comments you might have or if you’d like to know more about a particular topic.

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