In a dispute between the heirs and survivors of the band Lynyrd Skynard against a production company seeking to make an unauthorized documentary with the aid of a former bandmember, a District Court Judge in the Southern District of New York applied an adverse inference to the text messages of the scriptwriter, who purchased a new phone after the commencement of the litigation.
Although the consultant scriptwriter at issue, Mr. Cohn, “is a non-party, his text messages were, practically speaking, under Cleopatra’s [i.e. the Defendant production company’s] control. Cohn was contracted by Cleopatra to work on the Film, and the evidence has establishes that he worked closely with Cleopatra for over the past year. Over the course of the instant litigation, Cohn has participated by providing documents and took a deposition sought by Plaintiffs during discovery. As has been found relevant in other cases determining the relationship between a party and non-parties, Cohn also has a financial interest in the outcome of this litigation, since he is entitled to a percentage of the Film’s net receipts, which would be zero should Plaintiffs prevail. In sum, while determining practical control is not an exact science, ‘common sense’ indicates that Cohn’s texts with Pyle [i.e. the former bandmember] were within Cleopatra’s control, and in the face of pending litigation over Pyle’s role in the Film, should have been preserved.
“Cleopatra next contends that Plaintiffs have not established Plaintiffs issued Cohn a valid subpoena for the text messages and, therefore, there cannot be sanctions for Cohn’s noncompliance…. However, what the rules require is independent of a proper subpoena and simply that the lost information ‘should have been preserved,’ and there has been no dispute that the missing texts would have been relevant to the instant matter. Moreover, unlike the cases Cleopatra has cited in support its position, Plaintiffs have tried repeatedly — albeit unsuccessfully — throughout this expedited litigation to access these documents. Plaintiffs may very likely have attempted, with greater success, to acquire Cohn’s texts with Pyle; after learning the texts were destroyed, however, such opportunity was foreclosed….
“Cohn’s actions with regard to the text messages — getting a new phone after Plaintiffs brought the instant action and managing to back-up pictures but, somehow, not text messages — evince the kind of deliberate behavior that sanctions are intended to prevent and weigh in favor of an adverse inference.”
Ronnie Van Zant v. Pyle, No.17-3360, 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017).
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