Preserve challenged ads/social media posts after receiving a C&D or risk sanctions

Nutrition Distribution LLC v. Pep Research, LLC, No. 16CV2328-WQH(BLM), 2018 WL 3769162

 (S.D. Cal. Aug. 9, 2018) (magistrate judge)

A spoliation/false advertising issue.  “While Defendants produced some social media documents, the production did not include Facebook or Twitter posts relating to the illicit products identified in the complaint.” For a finding of spoliation, a party must show that “(1) the party with control over the evidence had an obligation to preserve it at the time of destruction; (2) the evidence was destroyed with a ‘culpable state of mind’; and (3) the evidence was relevant to the party’s claim or defense.”

After plaintiff’s demand letter and complaint, which identified the products and ads at issue, defendants had an obligation to preserve relevant posts on their social media sites.  There was evidence of a culpable mental state, where a deponent responded to a question about whether the deleted posts had anything to do with this lawsuit, with “It’s possible. Actually, it was -- I think it had more to do with any copycat companies, law firms like yours trying to file the same frivolous lawsuit.” When asked about deleting posts related to marketing one of the products at issue, he responded, “I have the right to do whatever I want to do with my Facebook account, regardless of a lawsuit or not.” His declaration that no posts were deleted intentionally for purposes of litigation/post-filing was inconsistent with his deposition testimony and unsupported by evidence. Destruction after notice/negligence is sufficent to be culpable.

Finally, the evidence indicated that the deleted evidence was relevant to the claims as it “include[d] advertisements, photos, marketing, and misleading statements at issue in this action.” There was prejudice, because the plaintiff only has some Facebook and Twitter posts, not all of them.  The appropriate sanction was an adverse inference instruction that “the social media posts deleted were false advertising of products that compete with Plaintiff.”  Monetary sanctions were unnecessary given such an instruction.