Extract from Philip Favro’s article “Court Sanctions Plaintiff for Destroying Relevant Facebook Messenger and Telegram Messages”
Parties have an obligation to preserve relevant ESI from ephemeral messaging applications and other digital age communication apps and information sources. Even though ESI from these applications is dynamic and thus easily subject to modification or deletion, parties must take reasonable steps to retain such information after a duty to preserve triggers. Failure to take such steps can leave a responding party—plaintiff or defendant—vulnerable to data loss and sanctions.
A new decision from Fast v. GoDaddy.com, LLC (D. Ariz. Feb. 2, 2022) demonstrates the importance of this point. The court in Fast sanctioned plaintiff for destroying relevant Facebook Messenger and Telegram messages, along with other ESI. Fast teaches that parties should take reasonable steps to identify and promptly preserve dynamic sources of relevant ESI.
Plaintiff Fails to Produce Relevant Facebook Messenger and Telegram Messages
In Fast, plaintiff sued defendant GoDaddy for discrimination, alleging the company improperly eliminated her position while keeping other, less qualified male employees to handle comparable work. Before GoDaddy terminated her employment, plaintiff began working with a colleague (“Mudro”) to marshal evidence supporting plaintiff’s claims against GoDaddy. Plaintiff and Mudro used Facebook Messenger as their principal form of communication; they also exchanged messages on Telegram, an ephemeral messaging application.