What are the ramifications when a leader of a broadcast media company deletes text messages over several years, even though there may be a legal obligation to keep them accessible as items that could be needed for an ongoing court case?
In the case of Griffin Communications’ President and former Chief Operations Officer, it is a matter of negligence, and not a bad faith action.
The U.S. District Court for the Northern District of Illinois this week ruled that imposing “spoliation sanctions” on Griffin Communications — a party in a federal ad price-fixing case that saw settlements arrive in late May from Paramount Global; FOX Corporation; and Cox Media Group — was warranted in part.
But, the failure to preserve relevant electronically stored information on the part of Rob Krier was, in the court’s view, not deliberate.
On September 11, 2017 the Justice Department sent a Civil Investigative Demand letter to Griffin Communications, in which it described the DOJ’s antitrust investigation on ad price fixing. This was done at a time when the now-scuttled merger of Sinclair Broadcast Group and Tribune Broadcasting was still awaiting a regulatory decision, and the actions were tied to the Justice Department’s review of the proposed deal.
That letter instructed CEO David Griffin to “take all necessary steps to ensure that [the company] preserves all documents, emails, and information, including hard copy and electronically stored information relevant to this investigation.”
In February 2018, second CID letter was sent to Griffin. In it, Griffin was informed that the DOJ’s Antitrust Division had “recently become aware” that Griffin was “exchanging, directly or indirectly, with other Big 4 broadcast stations in the Oklahoma City DMA current and forward-looking competitive information.”
Finally, on March 16, 2018, the DOJ sent a third CID letter indicating DOJ was
investigating “whether there is, has been, or may be a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, by conduct, activities or proposed action of the following nature: competitively sensitive information exchanges in unreasonable restraint of trade.”
David Griffin explained that after receiving the February 2018 CID letter, he met with IT personnel and legal counsel to discuss it. In particular, Mr. Griffin “made sure that he put a document hold on everything and that no documents would be destroyed” and “instructed the staff.” Mr. Griffin also stated that the need to preserve documents “was communicated to all relevant staff.”
Yet, emails associated with former Griffin/Tulsa sales leader Lex Sehl, who joined Sinclair in August 2017, were not preserved after the end of his tenure. As such, Griffin Communications was ordered to produce files from the six account executives Sehl supervised. One of those six individuals exited Griffin in November 2017, and her OneDrive files, hard drive and texts were no longer accessible. One other individual did not report to Sehl, while OneDrive files, hard drive access and text messages could not be recoverable for a period of mid-2016 through March 11, 2019, for a third individual.
The bigger issue involves Krier. It was explained to DOJ that Krier “is not sophisticated
with respect to technology matters,” and his “habit has long been to delete almost all text messages, whether from business contacts or family members.” Furthermore, Krier thought his text messages were preserved, like his emails were, in “iCloud,” although he does not know what his iCloud credentials are.
While Krier remembers receiving “a note” around February 2018 instructing employees not to delete emails, Krier continued deleting text messages from his phone up until the Saturday before his deposition on January 12, 2023.
Krier communicated with employees of other defendants in the ad price-fixing case, including CoxReps, and Griffin Communications has produced all responsive text messages involving Krier and another Griffin custodian.
At issue: Did Griffin intentionally deprive its opponent of evidence in litigation? The court said no, agreeing with the company’s contention that Krier was indeed not sophisticated in matters pertaining to text messages.
That said, the court was not pleased with Griffin Communications. “Griffin failed to take reasonable preservation steps in general, and to preserve Krier’s text messages specifically,” the ruling states. “Griffin is a sophisticated enough corporate entity that the lack of documented attorney involvement in and oversight of a significant litigation hold
is baffling.”
Thus, the court ruled, “Although neither the fact of the prior existence of text messages nor their contents can be known for certain, there is enough evidence to suggest their relevance to Plaintiffs’ claims that Griffin engaged in anticompetitive, collusive behavior.”
While that is the case, “there is insufficient evidence of bad-faith intent” on the part of Krier, the court concluded. “[H]e deleted not only his work text messages, but also his personal text messages from family members and friends. It was his regular practice for years before and after this litigation to delete nearly all text messages.”
Meanwhile, the court ruled that the loss of Sehl’s emails do not warrant sanctions because of the timeframe of his employment and the DOJ investigation.
What does this mean for Griffin? The Court will award as sanctions no more than one-third of the reasonable fees and costs associated with bringing the motion. Plaintiffs shall submit a detailed fee petition for the court’s consideration by September 21, with Griffin’s objections to be filed by October 5.
The court will not consider fees associated with preparing the fee petition.
U.S. District Judge Virginia Kendall represented the court in rendering the decision.
