Doug Austin, eDiscovery Today: In a Text Book Case of Spoliation of Cell Phone Data, Court Sanctions Skanska

Extract from Doug Austin’s article “In a Text Book Case of Spoliation of Cell Phone Data, Court Sanctions Skanska”

In the Matter of In Re Skanska USA Civil Southeast Inc., et al., No. 3:20-CV-05980-LC/HTC (N.D. Fla. Aug. 23, 2021), Florida Magistrate Judge Hope T. Cannon, calling this a “text book case of spoliation”, granted in part the claimants’ spoliation motion, seeking sanctions against Skanska, including the ultimate sanction of a dismissal, for the destruction or loss of cell phone data and the deletion of text messages, finding bad faith on the part of Skanska for failing to preserve cell phone data for five custodians, but awarding adverse inference and monetary sanctions instead of dismissal.

Case Background

In this case involving construction contractor Skanska and potential economic damages after its barges knocked out the Pensacola Bay Bridge during Hurricane Sally, the claimants sought the production of certain electronic discovery from Skanska, including the production of cell phone data. The parties agreed to an ESI Protocol that included the production of text messages and the claimants’ first request for production of documents included a request for relevant text messages. In response, Skanska selected thirteen custodians for whom it would provide cell phone data.

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