Court Imposes Adverse Inference for Failure to Preserve Text Messages Related to Criminal Investigation

United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010) (Not for Publication)

For the Government’s failure to preserve text messages sent between investigating agents and a cooperating witness, the court found sanctions were warranted and ordered that the jury would received a “spoliation charge” allowing (but not requiring) it to infer that the deleted messages were favorable to the defendants.

In 2008, federal law enforcement agents began using a cooperating witness in the course of their investigation of public corruption within the State of New Jersey.  In the course of that investigation, text messages were sent between the cooperating witness and several F.B.I. agents, including messages sent from the cooperating witness while meeting with defendants.  When those messages were requested, however, it was discovered that many had not been preserved.  Each of the agents testified that they had never been instructed to preserve their messages and that they deleted the messages from their handheld devices in an effort to free up memory space.  Additionally, many of the messages were lost from the Government’s servers and backup tapes as a result of the failure to timely issue a litigation hold.  Notably, a litigation hold was not issued until January of 2010 (seven months after the conclusion of the investigation and three months after beginning the search for the missing text messages), despite the fact that the F.B.I. appeared “well-equipped to preserve documents relevant to the litigation” had they been asked to do so and the fact that the U.S. Attorney “was aware of the importance of preserving documents relevant to the litigation and could have requested a litigation hold on the text messages from the inception of the investigation.”  As to one particular database which should have contained text messages from as far back as November 2007, the Government could provide no explanation as to why some text messages from the relevant time frame were preserved while others were “apparently deleted.”  As a result of the unavailability of the text messages, defendants requested the court suppress related evidence or issue an adverse inference instruction.

The court first addressed the threshold question of whether the text messages were discoverable and, upon finding that “the Government had a duty to preserve the Jencks material contained in the text messages,” turned to the question of an appropriate sanction.

The court first considered the defendants’ request that the testimony of the cooperating witness and all tape recordings in which he was a party be suppressed but denied the request absent evidence of bad faith or that the text messages contained exculpatory evidence.

Turning next to defendants’ request for an adverse inference, the court identified the “key considerations” for determining an appropriate sanction, namely the degree of fault by the spoliating party, the degree of prejudice to the opposing party, and the availability of lesser sanctions to avoid unfairness to the opposing party while deterring such conduct by others in future.  Noting the lack of evidence of bad faith in the present case, the court recognized, however, that evidence indicated the defense was nonetheless prejudiced by the loss and concluded that the “lesser sanction” of an adverse inference was appropriate because:

1) The text messages were within the Government’s control;
2) The text messages were intentionally deleted by the agents, and the U.S. Attorney’s Office failed to take steps to preserve them;
3) The text messages that were deleted or not preserved were relevant to claims or defenses; and
4) It was reasonably foreseeable by the Government that in the context of this investigation and in light of the actions of the cooperating witness the text messages would later have been discoverable.

The court went on to note that these findings fell squarely within the four elements that must be satisfied for a court to issue an adverse inference instruction:

1) The evidence in question must be within the party’s control;
2) It must appear that there has been actual suppression or withholding of the evidence;
3) The evidence destroyed or withheld was relevant to claims or defenses; and
4) It was reasonably foreseeable that the evidence would later be discoverable.

As to the question of “actual suppression or withholding of the evidence”, the court applied a “flexible approach” taking into account both the culpability of the offending party and the prejudice to the innocent party and determined that while the Government’s behavior was “at worst … within the realm of gross negligence,” the prejudice to defendants was clear such that there was “actual suppression or withholding” for the purpose of imposing an adverse inference.

Regarding the reasonable foreseeability that the evidence would be discoverable, the court reasoned that where the cooperating witness was often seen text messaging in videos of his meeting with defendants, the Government “must have forseen that any defense attorney viewing the same video…would seek discovery of the text messages” and concluded it was therefore “at least ‘reasonably foreseeable’ that communications between the cooperating witness and the Government agents…would be discoverable in this case.”

Having concluded that an adverse inference was warranted, the court turned its consideration to how the instruction should be phrased. Citing the recent decision in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), the court identified “three levels of adverse inference” which differ in severity based on the nature of the spoliating conduct.  In the present case, the court determined that the “least harsh ‘spoliation charge’” was appropriate which would allow but not require the jury to infer that the unavailable messages were relevant to the case and favorable to defendants.