The Snapchat mobile application allows users to record photographs and videos with their smart phones and send them to other Snapchat users. A Snap appears on the receiver’s screen for only a few moments before disappearing. The users can also send chat messages, create visual Stories that remain on the user’s account for one day, and store Snaps indefinitely as Memories. To save a Snap as a Memory, users must take an affirmative step to click an icon located at the bottom of the application window on their screen. To delete a Snap from the Memories folder, users must also take multiple affirmative steps from within the application. Per Snapchat’s website: “Memories keeps the Snaps and Stories you save, so you can look back on them at any time! Memories are backed up by Snapchat. If you delete a Snap from your Memories, Snapchat servers are designed to erase that Snap as soon as possible.”
In this particular case, the plaintiff, from 2016-2020, intentionally saved at least 86 images and videos to the Memories folder within the Snapchat application on his phone. In the course of discovery, Plaintiff downloaded a zip file of his Snapchat data, which included links to downloadable videos and images that had been saved in the Memories folder within the Snapchat application on his phone. When the zip file was produced to the defendants, several of the links did not work. Plaintiff admitted that, at some point after the zip file production, he deleted files off of the Snapchat application on his phone.
Though Plaintiff claims he has never posted anything relevant to this litigation on his social media, he is not the one who decides what is relevant. Although plaintiff suggests that he has not used social media to discuss this case, and “what can be obtained from Snapchat is not any content, but metadata from 2020 when the case deals with what happened in the 2015-2016 school year at Purdue”, and has “questioned what Defendants think they can possibly use that is of any relevance to the case which occurred in the 2015-2016 school year”, the fact that the content was created after the events leading to this lawsuit does not make it irrelevant. And, further, a social media post need not directly reference or discuss a lawsuit for it to be relevant to the claims at issue.
Nevertheless, the Court found that the defendant could not establish that the files were deleted for the purpose of hiding adverse information: “The Court recognizes that Defendants’ argument is impeded by Plaintiff’s destruction of the files. Without having viewed them, Defendants are hard pressed to present the Court with a compelling argument that Plaintiff deleted the files to hide adverse evidence. Further, the Court finds believable Plaintiff’s assertion that he deleted the files to free up space and memory on his phone, rather than out of an attempt to hide their content from Defendants. With nothing but Defendants’ speculative assertions to the contrary, the Court cannot find that Plaintiff deleted the files for the purpose of hiding adverse information. As such, Defendants’ spoliation claim fails.”
At the same time: “While the Court will not impose sanctions based on a spoliation claim, Plaintiff is not off the hook for his actions – and, separately, neither is his counsel. In general, federal courts have inherent power to impose sanctions for misconduct. Federal Rule of Civil Procedure 37 provides that a court can impose sanctions for a party’s failure to obey a discovery order…. The Court need not find that a party’s failure to comply with a discovery order was due to willfulness, bad faith, or fault to impose sanctions; a showing of willfulness, bad faith, or fault is necessary only when dismissal or default is imposed. A party’s culpability for that failure determines only which sanctions the court should impose and not whether any sanctions are appropriate at all. Here, the Court finds that Plaintiff’s deletion of the Snapchat data is sanctionable under Rule 37.
“Plaintiff had a duty to preserve the deleted files because they were sought via formal discovery requests. He was under a separate duty to preserve the deleted files pursuant to at least one, if not multiple, Court orders. Plaintiff unequivocally agreed to provide Defendants with the Snapchat data via the Joint Stipulation, after which Defendants withdrew their motion to compel. Then, despite this agreement and Defendants’ withdrawal of their motion, Plaintiff refused to provide the data because he deemed it to be irrelevant. Defendants were forced to seek recourse via their motion for sanctions. Though the Court found, at that time, that sanctions were not yet warranted, the Court nonetheless issued an order on September 24, 2020 requiring Plaintiff to comply with his previous agreement to provide the Snapchat data. And, now, it is clear Plaintiff has deleted some of the very files he was ordered to produce. Although it is not entirely clear exactly when that deletion occurred, it was certainly after Judge Cherry’s 2017 order requiring the preservation of ESI. It was also after discovery requests specifically requested Snapchat data. Perhaps most importantly, it was also clearly after the June 2020 agreement of the parties to produce the Snapchat data, and this Court’s order endorsing that agreement. As such, Plaintiff’s actions are sanctionable under Rule 37 for his inarguable failure to comply with the Court’s June 3, 2020 order, and was further a violation of the Court’s February 15, 2017 order requiring the preservation of electronically stored information….
“Plaintiff certainly did not appear to consider the impact of deleting data from his Snapchat application and instead relied on a number of self-serving assumptions about Snapchat’s ability to preserve data, many of which turned out to be wholly inaccurate…. Not only was Plaintiff wrong about what data is available from Snapchat, but it is also clear that he affirmatively knew that he had access to other files, including images and videos, which were saved to the Memories folder within the Snapchat application on his phone…. From the very moment Defendants served their second requests for production in March 2020, Plaintiff – and, to be clear, his counsel – had the information necessary to understand that content beyond mere metadata could be downloaded from the Snapchat servers. And, from the first moment that Plaintiff claimed that Snapchat archives no content files, he knew (or should have known) this statement was false – Plaintiff himself had been saving content to the Memories folder contained within the application for years by that time….
“Defendants urge the Court to order Plaintiff to show cause why Count I of the Amended Complaint should not be stricken and, further, why Plaintiff should not be held in contempt of the Court’s September 24, 2020 order. The Court will not grant this relief for two reasons. First, the Court finds that striking Count I of the Amended Complaint is a disproportionate punishment for Plaintiff’s deletion of the files, especially considering that there is nothing in the record to indicate whether the files were in fact adverse to Plaintiff’s case. Second, the Court need not receive further explanation from Plaintiff to determine whether he failed to abide by Court orders given the subsequent hearing on this matter. The Court has discretion to enter any just orders to ameliorate the harm created by violation of discovery orders. And, further, the Court has the authority to order a measure no greater than necessary to cure the prejudice to a party when ESI that should have been preserved has been irretrievably lost due to the failure to take reasonable steps to preserve it. Pursuant to this authority, the Court imposes monetary sanctions, will allow for the introduction of evidence related to this issue at trial, and will also allow for a jury instruction related to the deletion of Snapchat data.”
Doe v. Purdue University, No.17-33, 2021 WL 2767405 (N.D.Ind. July 2, 2021).