Case of Interest

The 5th Circuit had a recent case of interest dealing with cell phone messages.  The district court required the plaintiff in an FLSA case to submit her phone to a forensic examiner. It then awarded significant sanctions when the defendants' "inspection revealed that the text messages in question were not on [Plaintiff's] phone, that the mobile application allegedly containing such text messages was not on the phone, and that the phone appeared to have been reset or newly activated only three days before the forensic inspection." The Fifth Circuit found no abuse of discretion; footnote 2 of the opinion details several unsuccessful explanations and counterarguments offered by the plaintiff, which had no traction here but could be of interest in a future e-discovery dispute involving similar issues. Timms v. LZM, LLC, No. 15-20700 (July 5, 2016, unpublished).