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Jan 25

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Adverse Inference Instruction for Failure to Preserve Text Messages

There are plenty of cases in which courts provided sanctions for a failure to preserve and produce relevant electronically-stored information (ESI).  But there are practically no such cases involving text messages.  As texting becomes more prevalent and important, this area will continue to evolve.  However, as a general proposition, there is usually not much relevant data to produce outside of the criminal area because of the more limited storage for text messages that mobile devices hold. 

A recent case (but still involving a criminal matter) provided an adverse inference instruction.  We updated our article involving text message discovery, which describes the background, technology and related limitations.

About the author

David Nolte

I am a founding principal of Fulcrum Inquiry, an accounting and economic consulting firm that performs damage analysis for commercial litigation, forensic accountings, financial investigations, and business valuations. I am a Certified Public Accountant (CPA) and an Accredited Senior Appraiser (ASA), as well as having other professional credentials. I regularly serve as an expert witness involving damages measurement. My litigation-oriented resume is on Fulcrum's website.

Permanent link to this article: http://betweenthenumbers.net/2011/01/adverse-inference-instruction-for-failure-to-preserve-text-messages/

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