Lynyrd Skynyrd, the popular 1970s Southern rock band behind the legendary songs “Sweet Home Alabama” (Roll Tide) and “Free Bird”, has been back in the news due to a recent legal ruling that prohibits the distribution of a new film about the influential band.
The case is interesting to eDiscovery professionals because much of the case revolved around missing cellphone text messages of a non-party.
The duty of preservation obviously extends to the parties to the case. In Ronnie Van Zant, Inc. v. Pyle, 17 Civ. 3360 (S.D.N.Y. August 28, 2017), the court found that the defendant should have preserved text messages possessed by a non-party because the evidence was “practically” in their control. The court imposed the severe sanction of an adverse inference instruction, and the plaintiff prevailed on the merits. Pretty scary ruling for those that take a narrow view of their obligation to preserve evidence in litigation.
Let’s look at the background of the case.
Lynyrd Skynyrd were at the height of their fame in October 1977 when the group’s tour plane crashed, killing lead singer Ronnie Van Zant and guitarist Steven Gaines and injuring the rest of the band. Shortly after, Van Zant’s widow and the surviving members made an agreement – what they called a “blood oath” – to retire the “Lynyrd Skynyrd” name forever.
But in 1987, on the tenth anniversary of the plane crash, the surviving members of the group mounted a reunion tour. The concerts were framed as a tribute and capitalized heavily on the Lynyrd Skynyrd name and legend. Van Zant’s widow objected and sued.
In 1988, the court handed down a consent decree saying that the parties – that is, the surviving band members and the widows or representatives of the deceased members – must all agree before any of them can participate in or profit from a film or book project telling ‘the story of Lynyrd Skynyrd’. Artimus Pyle, who was the band’s drummer in 1977 and survived the plane crash, was one of the parties bound by the terms of this decree.
Skip to 2016, and a movie studio called Cleopatra Films is began work on a movie about Lynyrd Skynyrd entitled Street Survivors and centering on the incident of the fatal flight. Unfortunately for Cleopatra, it chose to heavily involve Artimus Pyle in the project and tell the story through his eyes. Pyle did not fully disclose the prior litigation, and ultimately it is his connection to the film that led to the verdict forbidding its release.
Cleopatra agreed to pay the drummer 5 percent of the film’s net receipts, credited him as co-writer and co-producer, and extensively interviewed him about life in the band and the crash. Throughout the film’s production, the writer and director Jared Cohn – who was not an employee of Cleopatra Films, but who was under contract with them – stayed in touch with Pyle via phone text messages, seeking his counsel on casting and script changes.
Eventually, the legal heirs and other former members of Lynyrd Skynyrd learned of Pyle’s involvement in the project, largely thanks to updates Cleopatra made to the film’s entry on the Internet Movie Database. They first sent a cease-and-desist letter and later, in 2017, sued both Cleopatra and Pyle for violating the terms of the 1988 consent decree.
And here we get to the part of the case that attracted Servient’s interest, and which is important for anyone involved in eDiscovery and the handling of electronic data:
Throughout the making of the film, writer-director Jared Cohn was in regular contact with Pyle via text messages on his cellphone. The quantity and quality of those texts would have shed further light on the extent of Pyle’s involvement – and they might have undermined Cleopatra’s efforts to downplay its reliance on Pyle. (This was important for Cleopatra, since its duty to observe the consent decree came solely through its connection with him.)
In May 2017, however, shortly after the legal action was brought, Cohn switched his phone provider and got a new phone. He managed at that time to back-up his photos from his old phone, but did not save any of his old text conversations.
The judge in the August ruling found that, because of this failure by Cohn to preserve information relevant to the case, the plaintiffs were entitled to an adverse inference, or a presumption that the lost/destroyed information would have materially aided their case. This was in spite of the fact that Cohn was not a party to the case.
The ruling states that Cohn’s “text messages were, practically speaking, under Cleopatra’s control”. It also says “…while determining practical control is not an exact science, ‘common sense’ indicates that Cohn’s texts with Pyle were within Cleopatra’s control.”
The reasoning is that, since Cohn was contracted by Cleopatra, had worked closely with them over the course of a year on the film, and had a financial interest in the outcome of the litigation (he would profit from the film being released), he likely would have yielded to requests by Cleopatra to preserve his text message information bearing on the litigation. Cleopatra was therefore punished for its failure to exert influence on Cohn to preserve data.
Even if a party itself has no legal control over information, it may be held liable for not at least attempting to get others with relevant data to preserve it – if a court later decides the other person likely would have complied.
In any case, a permanent injunction has been granted against Cleopatra Films releasing its Lynyrd Skynyrd biopic. So will the film ever be seen? That is currently unclear. But feel free to browse the web for further news of this case and its potential legal ramifications.
And certainly feel free to get in touch with Servient, Inc. at firstname.lastname@example.org the next time you have need for competent and knowledgeable specialists in the eDiscovery field!