No Sanctions For Text Message Deletion
By IT-Lex Intern Christopher Britt (LinkedIn)
If you are afraid that your employees will start their own company and take some of your clients with them, be sure you get a non-compete clause in the contract that they sign. PTSI, Inc., a Pennsylvania based sports training corporation, made the mistake of having at-will employees and is now paying the price. While still working for PTSI, Cole Haley and Anthony Piroli, who are both personal trainers, decided to strike out on their own and make a competing firm. Haley and Piroli informed the clients they worked with—but who were still clients of PTSI—that they would be leaving and forming their new company ESI. (It’s a delightful coincidence that their new company has the same acronym as a key eDiscovery term. Also, we are dorks.)
PTSI decided that they would try to trounce the new startup in court, but it did not go at all how they wished. The court granted summary judgment to Haley and Piroli on all counts. The Court found that since Haley and Piroli were at-will employees (meaning there was no contract binding them in any way):
[T]he solicitation of and use of customers lists is permissible unless there is a breach of an express contract or violation of some confidence[…] Generally, in the absence of an express contract to the contrary, solicitation of a former employers customers, on behalf of another in competition with his former employer, will not be enjoined.
The majority also found that Haley and Piroli did not “spoil” any evidence…in bad faith. That is, Haley and Piroli were accused of deleting emails and text messages to which they readily admitted. However, the Court concluded that to keep all text messages and emails would be unduly cumbersome given their profession in which they receive more messages and emails than their phones could hold. The Court deferred to the trial court, which had concluded:
The doctrine of spoliation only applies to the improper intentional destruction of evidence that could be relevant to the case. Here, there has been no showing that the innocent clean up of personal electronic devices to allow them to function was unusual, unreasonable or improper under the circumstances.
The record is clear that both [Haley and Piroli] routinely deleted text messages, often on a daily basis, so as not to unduly encumber their iPhones. Because of the volume of text messages that are frequently exchanged by cell phone users and the limited amount of storage on cell phones, it would be very difficult, if not impossible, to save all text messages and to continue to use the phone for messaging.
The concurring opinion was most vocal on the spoliation, disagreeing with the rest of the majority. Justice Wecht took issue with the lower court’s determination that the Appellant (PTSI) was engaged in a “fishing expedition” with regard to the emails. Justice Wecht pointed out that Haley and Piroli had both deleted the backups of the text messages that they deleted from their phones as well, giving some semblance of wrong doing. Furthermore, even though the trial court stated that “substantially similar information was available from other electronic discovery custodians and other sources with less burden and difficulty,” Justice Wecht would have been satisfied had PTSI been allowed to shoulder such burden.
Alas, even Justice Wecht noted that there was not enough evidence proffered by PTSI to make the sanctions viable. For now, PTSI must be contented that they only lost 55 clients and 2 employees.