BFV Perspectives, Sports Fans Guide 2 HR, | Oct 26, 2018

Evidence Preservation: Urban Meyer’s Missing Texts Offer Lessons

On August 22, 2018, The Ohio State University held a press conference and revealed that football coach Urban Meyer would not lose his job over the handling of the Zach Smith domestic violence controversy. Instead, Coach Meyer was issued a 4-game suspension.  As expected, the University’s decision resulted a media firestorm, with pundits voicing differing opinions about the decision.

Coach Meyer has since served his suspension. With other national stories garnering the attention of our country, the Coach Meyer controversy seemed to be old news to most everyone.  That was until the Buckeyes lost to Purdue.  The media spotlight is now back on Coach Meyer and there are renewed rumblings about the controversy that led to his suspension.  Employers and employees should not overlook this storyline, because there are many important legal issues that arise from the Big 10 controversy.

After reading the investigation report several times, one portion stood out as particularly fascinating to me, but which little attention has been focused: evidence suggesting that Coach Meyers may have intentionally deleted relevant text messages.  So as not to mischaracterize the report, I have provided below the relevant section of the report below.

OSU Investigation Report Excerpt

August 1, 2018 Social Media Reports that Meyer Had Knowledge of the 2015 Events:

  • On August 1, 2018, a widely shared news report claimed that Urban and Shelley Meyer had been aware of Courtney Smith’s allegations of abuse in 2015 and of law enforcement’s investigation. The reported information included two incident reports from the Powell PD, as well as text messages between Courtney Smith and Shelley Meyer.
  • Upon seeing this report when it first came out (at about 10:17 a.m.), Brian Voltolini, who was on the practice field with Coach Meyer went to speak with him, commenting that this was “a bad article.” The two discussed at that time whether the media could get access to Coach Meyer’s phone, and specifically discussed how to adjust the settings on Meyer’s phone so that text messages older than one year would be deleted.
  • Our review of Coach Meyer’s phone revealed no messages older than one year, indicating that at the time it was obtained by OSU on August 2nd, Coach Meyer’s phone was set to retain text messages only for that period, as Coach Meyer and Brian Voltolini discussed. We cannot determine, however, whether Coach Meyer’s phone was set to retain messages only for one year in response to the August 1st media report or at some earlier time. It is nonetheless concerning that his first reaction to a negative media piece exposing his knowledge of the 2015-2016 law enforcement investigation was to worry about the media getting access to information and discussing how to delete messages older than a year.
  • The lack of clarity surrounding this issue is compounded by the failure of OSU personnel to respond promptly to two July 25, 2018 records requests from the school paper, “The Lantern,” for emails and text messages, as well as any call history, between Urban Meyer and Zach Smith from July 18, 2018 through July 24, 2018 and between Oct. 25, 2015 and Dec. 1, 2015, and the same communications between AD Gene Smith and Coach Meyer for the same dates for any materials “pertaining to Zach Smith.”

What Legal Issues Arise from Deleted Text Messages?  

For employer and employee litigants, Coach Meyer’s conduct raises two important legal issues, especially in non-compete and trade secret litigation: (1) the duty to preserve evidence; and (2) potential sanctions for the spoliation of evidence.

For example, in non-compete and trade secret litigation, forensic analysis of electronic devices can sometimes be critical to establishing a claim of unfair competition or misappropriation of trade secrets.  Many cases turn on the existence (or non-existence) of damaging electronic evidence.

Generally, a party has an obligation to make a conscientious effort to preserve evidence including electronically stored information (such as emails and text messages) when litigation is reasonably foreseeable.  For example, being served with a lawsuit or receiving a demand letter threatening a lawsuit can trigger the obligation.

While the applicable rules and court decisions have become significantly more tolerant of inadvertent or unintentional failures to preserve relevant data, this is still an issue that needs to be considered. If a party intentionally deletes information there may be severe consequences including, but not limited to, the imposition of financial sanctions, the drawing of adverse inferences, and even a default judgment.   Even if a party is innocent as to the underlying allegations driving the lawsuit, the deletion of evidence can potentially harm the party’s credibility and lead to liability.  Thus, it is critical for employers and employees to understand their duty to preserve certain information and seek legal advice when a potential claim arises.

BFV Perspectives, Sports Fans Guide 2 HR, | Oct 26, 2018
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.