In Episode 177, Kelly Twigger discusses how the failure to preserve text messages when plaintiff upgraded his phone multiple times led to an adverse inference instruction in Oakley v. MSG Networks, Inc.
Introduction
Welcome to this week’s episode of the Meet and Confer podcast. My name is Kelly Twigger. I am the CEO and founder at Minerva26, where we take the insights from our law practice at ESI Attorneys and provide a discovery strategy tool for litigators to leverage the power of ESI. Thanks so much for joining me today.
Our Case of the Week segment is brought to you by Minerva26 in partnership with ACEDS. If you are new to the podcast, each week I choose a recent decision on ediscovery issues and highlight the practical considerations for counsel to apply in their practice and for other legal professionals to know about.
Our case this week is yet another instance of failing to preserve text messages and the dramatic implications of that failure in a high-profile case involving a retired sports celebrity in the city where the incident occurred. I’m not sure that the remedies we have in place are solving this problem, since it seems to come up at least a couple of hundred times a year in case law.
All right, let’s dive in. This week’s case comes to us from Oakley v. MSG Networks, Inc. This is a decision from July 23, 2025, so just a few weeks ago, from United States Circuit Judge Richard Sullivan. Judge Sullivan has 29 cases in our Minerva26 case law database and, as with each of the decisions and all the materials in Minerva26, we tag it with the appropriate issue tags. This week’s issue tags include exclusion of evidence, failure to preserve, mobile device, third-party subpoena, text messages, adverse inference, bad faith, dismissal, metadata, spoliation, cost recovery and sanctions.
Facts
All right, what are the facts that we’re talking about on this case?
Well, we’re before the court on MSG’s motion for sanctions that’s based on the plaintiff’s failure to preserve text messages from his phone. MSG seeks dismissal, preclusion of evidence, or an adverse inference instruction as sanctions, as well as costs and fees on the motion.
The underlying facts of the case involve former NBA player Charles Oakley, who was a star forward for the New York Knicks for seven years. Oakley was removed from Madison Square Garden during a Knicks game on February 8, 2017, allegedly due to his inappropriate behavior. There are not a lot of facts in this particular decision about the incident itself. Clearly, there’s something about Oakley being on the ground at some point, whether or not he slipped and fell or whether he was pushed by the gentleman removing him from the arena is part of what’s at issue here. Oakley sued MSG for defamation, libel, slander, assault and battery.
MSG, or Madison Square Garden, moved to dismiss the original complaint for failure to state a claim and the trial court dismissed the case. On appeal, the Second Circuit reinstated Oakley’s claims for assault and battery. Then, on remand, MSG moved for summary judgment on the assault and battery claims. The trial court again granted summary judgment and the Second Circuit again reversed in May 2023. So now we’re a good six years from the alleged incident.
And thus we come to our first theme here on the Case of the Week — that the timeline is always critical in discovery. Why? Because the parties here started discovery following that decision in May 2023, as I mentioned, a full six years after the incident first occurred. On July 10, 2024, so a year and a couple of months after that remand from the circuit court, Oakley’s counsel discovered that all of the text messages from Oakley’s phone were gone. They’d all been destroyed. Anything sent prior to February 2022 had been destroyed.
Counsel waited about six weeks to tell MSG’s council about the loss of the text messages, and they did so on August 22, 2024. The parties then met and conferred a couple of weeks later on September 16, 2024, at which point counsel for Oakley represented that Oakley had routinely traded in his mobile phone for a newer model, upgraded his iPhone at a Verizon store in February 2022, and then lost all his text messages in the process of transferring devices. A few things to focus on there — the Verizon store, his iPhone, and that he routinely traded in his mobile phone for a newer model. As we’re going to see in the facts, none of those things are actually true.
After that meet and confer, MSG submitted a letter to the Court requesting a pre-motion conference in contemplation of a motion for sanctions against both Oakley and his counsel. Now that’s a great move by MSG’s counsel. As we’ve discussed on previous issues here on Case of the Week, we often see that counsel are not alerting the court when they have these issues, and the court gets furious. It wants to know when counsel have motions like this that they’re going to bring before the court.
A few days later, after that motion was submitted, MSG deposed Oakley and he testified to the following, according to the summary provided by the Court. That he used an Android phone, not an iPhone, as his counsel earlier suggested, that he gets six to seven text messages a day, that he had upgraded his phone twice since the incident — once in 2020, three years after the incident and again in 2024, that his provider was AT&T, not Verizon, that his counsel had stated, and that he took no steps to preserve the data on his phone.
After the deposition, Oakley’s counsel submitted a letter to the Court arguing that MSG’s contemplated sanctions motion was meritless because Oakley took reasonable steps to secure the data on his phone — all evidence to the contrary — that MSG was not prejudiced by the loss of the text messages, and that Oakley did not intentionally destroy his texts. Now, unless the deposition summary by the Court is missing some pretty significant things, I’m not sure how Oakley’s counsel found reasonable steps to secure data in that testimony.
On November 20, 2024 — so now almost eight years after the incident — the Court held a pre-motion conference at which Oakley’s counsel suggested that Oakley was “merely required to (1) ‘[n]ot purposefully destroy [the data on his phone] and … [(2)] in a situation where he needs to preserve it, to transfer the data to a new device.” The Court then ordered a full hearing. As to those comments by Oakley’s counsel, it may be true that if he just continuously transferred those text messages to a new device and they still existed on a phone with all the requisite metadata, that he could have in fact produced them from the phone that existed at the time of this hearing or at the time his counsel realized they needed to be produced. However, that was not the case. At the full hearing, Oakley testified that he did, in fact, text about his removal from Madison Square Garden immediately following the incident, even though he “do[es]n’t really do a lot of texting.” He also testified — in contrast to his deposition testimony — that he had traded in his phone three times since the incident. His testimony also included that he took no steps to back up his phone, including asking AT&T to do it, and that he knew he had a duty to preserve documents, including text messages, for the litigation.
On January 9, 2025, so a couple of months later, MSG filed its motion for spoliation sanctions against Oakley and his counsel, naming the lawyers specifically. As the motion was pending, MSG’s counsel — not Oakley’s counsel — received the results of a subpoena to AT&T for Oakley’s text messages. Because phone companies do not retain the actual text messages, the records included 10,200 pages of metadata about Oakley’s text messages. We’ve talked about this before. When you send or receive a text message onto your mobile device, your mobile carrier tracks the number it was sent from and to and also the date and time of that text message. So that’s probably the metadata that was available from these reports, even though it’s not specifically discussed by the Court. The records from AT&T revealed quite a shockingly different picture about Oakley’s texting habits than he had disclosed. Surprise, surprise, surprise. In fact, Oakley had sent more than 800 text messages and received more than 4,200 text messages in the three weeks after the incident. The records also revealed that Oakley had upgraded his phone seven times in the past eight years, the first time being in April 2017.
It does go without saying here that, because Charles Oakley was a public figure, there was a lot of media coverage about this incident. It was on TV, it was broadcast. I think it was even covered on SportsCenter, so it was a pretty significant event. You’re going to have a lot of people blowing up his phone. However, the big problem is that Oakley’s testimony really doesn’t match what, in fact, the records show.
Analysis
So what’s the Court’s analysis here, based on these facts?
Well, as always, the Court looked to the three-part analysis required for sanctions under Rule 37(e), which is the rule that provides for sanctions for failure to preserve. Those three steps included whether Oakley failed to take reasonable steps to preserve ESI after the duty to preserve arose, whether MSG was prejudiced from the loss of the data, and whether Oakley destroyed the information with the intent to deprive MSG of its use in litigation with its use in litigation.
No surprise on step one, the Court found that Oakley had a duty to preserve text messages and data on his phone. But the Court found that his duty to preserve did not arise until September 12, 2017, when he filed the complaint, and not when the incident occurred earlier in February of 2017, or when he retained counsel, or when he even contemplated bringing the litigation. We’ll see if that impacts the analysis here, but that was a strange one from my perspective. The Court also cited to case law, in fact, saying that the duty to preserve arises when litigation is filed. That, generally, is when it applies to the defendant, because that may be the first time they reasonably anticipate litigation. It largely is not the timing of when the duty to preserve arises for a plaintiff, because a plaintiff generally contemplates bringing litigation for a long time before a complaint is actually filed. So, something to keep an eye on.
The Court then looked at the reasonableness of Oakley and his counsel’s actions with regard to the text messages. Both parties retained experts on the subject of whether or not Oakley’s actions were reasonable in light of his duty to preserve.
The Court found that MSG’s expert, who was Phil Favreau, that we know and love on the podcast, was much more credible, based on his extensive experience lecturing to the National Conference of Magistrate Judges on spoliation, serving as a special master on issues related to electronic discovery and ESI and regularly offering expert testimony and consulting services in the areas of data preservation practices, litigation holds, data collection strategies, search methodologies for ESI, security and privacy considerations regarding the discovery of ESI, and protocols regarding the preservation, identification and production of relevant ESI. In short, Phil was a very qualified expert to advise on the parties’ obligations here with respect to what’s reasonable.
In contrast, Oakley’s proffered expert was a professor, “an expert in the field of legal ethics and professional responsibility — not the discovery obligations imposed by Federal Rule of Civil Procedure 37(e).” According to the Court, while Professor Simon had written extensively regarding the rules of professional conduct and served on committees regarding ethical standards for lawyers, he had not written a single article to the Court’s knowledge regarding Rule 37(e). Added to that, most of Professor Simon’s experience pre-dated the amendment to Rule 37 in 2015 that essentially changed the game With regard to what sanctions are available for failure to preserve.
The Court found that Oakley should have taken affirmative steps to preserve his text messages and that the complete failure to take any affirmative steps to protect the data on Oakley’s phone was “unreasonable given the ever-present risk of losing or breaking mobile devices, the relative ease of preserving relevant information on such devices, and the fact that [Oakley] texted [multiple] individuals regarding the incident.”
The Court also found that counsel’s inclusion of a paragraph in their retainer agreement informing Oakley of his obligations to preserve information for the matter was not sufficient to comply with their preservation obligations. In essence, the counsel argued in defense of the motion for sanctions against them personally that they had included language in their retainer agreement that Oakley had signed saying that he had an obligation to preserve that information, and that was the full of the effort they took to have him preserve information, and that was supposed to be sufficient. The Court said no, I don’t think so.
The Court also cited to Favreau’s report and to case law all the way back to Zubelake from 2004, stating that counsel must take actual, actionable steps to make sure that evidence is retained and to avoid the possibility of deletion of relevant evidence, that preservation is a process that requires attorneys to take follow-up steps to ensure that electronic evidence is preserved after the issuance of a legal hold, and that it is not enough for counsel to issue a hold and assume that the client took adequate steps to preserve relevant data.
That’s a bit ironic to cite to all of that that language and to the expert report stating that and then to say that counsel don’t have any responsibility for sanctions here because they included that language and their client was aware of his preservation obligations. That’s essentially putting the obligation to preserve on the client here and it’s completely contrary to all that language that I just read to you that’s included in the Court’s decision. We see this a lot in decisions, but it’s a little weird that the judge here is saying these are the obligations of counsel, these counsel didn’t do them, but because Oakley knew he was supposed to preserve information, we’re going to let the counsel off the hook. I don’t think that’s going to happen going forward, so I wouldn’t rely on it.
Having found that the text messages should have been preserved, the Court looked to whether they were available from another source. MSG sent subpoenas to multiple individuals based on a list provided by Oakley’s counsel, but only one of those individuals had text messages dating back to 2017, and those messages from that individual’s phone were produced as screenshots, some of which were often cut off. Oakley also testified that he had texted with five individuals who were not even included on the list that Oakley’s counsel gave to MSG. So, no way they could have even subpoenaed them. So despite MSG’s efforts to find the text messages, they could not be replaced through additional discovery.
Having met the three prongs, the Court then moved to what sanctions were appropriate, given the facts surrounding the spoliation of the text messages. The Court found that MSG had demonstrated that it was prejudiced by the loss of Oakley’s text messages, because it was more than plausible that such text messages would have supported MSG’s defenses. That’s really the crux of when you’re arguing a spoliation motion — you’ve got to be able to show that the spoliated data would have been relevant and impactful to the particular allegations in the litigation, whether that’s the causes of action or the defenses to those causes of action.
As a basis for prejudice, the Court found that both parties had agreed that Oakley had sent at least 826 text messages in the three weeks following his removal from Madison Square Garden, which amounted to an approximate average of 39 text messages per day. That Oakley had sent at least 64 messages in the first 24 hours following his removal and 40 more messages over the course of the next day. And that the AT&T records further revealed that the average number of text messages that Oakley sent increased over 250% in the three-week period following his removal as compared to the days leading up to the incident. According to the Court, that increase was even more pronounced during the first full day after the incident, which supported the inference that Oakley sent text messages related to the claims at the heart of this matter. Finally, Oakley himself also admitted that he had texted about his removal and specifically identified at least 13 individuals with whom he texted about the incident.
The Court found that there was strong reason to believe that Oakley’s unguarded communications in his text messages would have undermined his assertion that he was assaulted at Madison Square Garden. Having found that prejudice, the Court then turned to the remedies that were available under Rule 37(e)(1). We’ve talked multiple times here on Case of the Week about the distinct differences between Rule 37(e)(1), that provides for remedies where prejudice is shown, and Rule 37(e)(2), that provides for remedies where an intent to deprive is shown. So the Court’s starting first here with the prejudice analysis. It’s found prejudice, so now it’s looking at what remedies are available under Rule 37(e)(1).
MSG asked to have evidence excluded here based on the text message spoliation and the Court said no, that’s not available under Rule 37(e)(1). But the Court did grant MSG the opportunity to present Oakley’s failure to preserve his texts and awarded costs and fees on the motion under Rule 37(e)(1).
As I mentioned earlier, the Court declined to extend the sanctions to Oakley’s counsel, given that Oakley testified that he had an obligation to preserve his texts and he failed to do so. As I mentioned, that is incredibly interesting to me because I have to ask how Oakley would have known how to preserve his text messages for a legal proceeding. That seems to be an obligation of counsel, and it’s specifically noted as an obligation of counsel by the Court to ensure that evidence is maintained for a matter. But here, the Court lets the lawyers off the hook.
Finally, the Court looked at whether Oakley acted with intent to deprive under Rule 37(e)(2). The Court concluded that MSG had established by a preponderance of the evidence that Oakley acted with the intent to deprive in this litigation, as supported by his repeated misrepresentations regarding his texting habits, phone trade-ins and the individuals to whom he spoke. The Court found that Oakley’s intent was inferred from his significant failure to preserve his text messages and his knowledge of his obligation to do so.
As to the remedy, the Court declined to dismiss the complaint — although if ever I’ve seen an opportunity where one should be dismissed, this might have been it — but granted MSG’s motion for an adverse inference instruction to be determined at trial.
There’s nothing from the Court on whether that adverse inference instruction would be permissive versus mandatory, and that may have a tremendous effect on the outcome if this is a jury trial, given the celebrity status of Charles Oakley. I don’t know how well liked Charles Oakley is in New York, but you’re going to likely choose a jury of people who are big sports fans in New York City, and so whether it’s a permissive inference instruction which would allow the jury to decide whether or not they should hold it against him, versus a mandatory instruction, in which they are ordered to hold it against him, then that may have a huge impact on how things will go in this case. Is that really what we expect the law to contemplate here? I think this goes to the 98% rule.
Takeaways
All right, what are our takeaways from this case?
Well, I’m starting to feel a bit like a broken record here on the Case of the Week, but this keeps coming up. So if you haven’t heard me before, please hear me now. Text messages are, in most cases, in many cases, in almost every case, a primary source of evidence, and you as counsel have to take active steps to preserve them for your clients. Despite the outcome of this case and the Court not holding counsel responsible for sanctions, I think that we’re going to start to see that tide turn and I think courts are going to start to hold counsel accountable.
The Court even outlines here what counsel should have done and case law and articles that state that it’s counsel’s obligation. So I don’t know how they escaped it here, but you shouldn’t count on that going forward. It is your obligation to make sure that your client’s data, text messages and otherwise, are preserved for the case. There are multiple very affordable technologies available to preserve data from mobile devices that take only hours to do and will save your client’s case, will save thousands or hundreds of thousands of dollars in the case of motion practice here. It’s not hard, people, so stop hiding from your obligations and just plain do it. If you need to know what those technologies are, feel free to reach out to me and I’ll send them to you.
Next takeaway. MSG’s work here to subpoena records from AT&T and other individuals who may have had text messages was critical to proving their sanctions motion. Fantastic work. Kudos to the counsel team. Too often, we see examples in case law of parties just alleging to the court that clearly prejudice exists and we can’t know what we can’t know from lost evidence. Instead of providing a factual basis for the Court to determine spoliation, prejudice and intent, the AT&T records here blew Oakley’s testimony out of the water. Remember, as counsel, you need evidence to tell your story, and much of that evidence has an electronic trail if you just follow it. MSG’s counsel did that here, and it’s a fantastic example of what to do.
Our next takeaway. Pay attention to the date the duty to preserve arises. As I mentioned earlier, I was surprised to find that the Court didn’t find that the duty to preserve arose until the filing of the complaint. It didn’t seem to impact the analysis here. There was no real discussion of whether or not all the text messages from the event were gone as of the April 2017 upgrade to Oakley’s phone. And if they were, that was before the duty to preserve arose. So, interesting that there’s no analysis about that. I didn’t read the brief, so it could have been raised by counsel, but I’m not sure whether it was or not.
I have seen other cases in which courts have found that the plaintiff’s duty to preserve arose when they contemplated litigation, and that can be much earlier than the filing of the complaint. So know your judge and your jurisdiction on that issue. It is a very critical one. It could have changed the outcome of this sanctions motion entirely here. If those text messages had been lost before that duty to preserve attached, there would be no sanctions motion under Rule 37(e).
Finally, last takeaway. You as counsel need to be wary of the fact that parties are now seeking to impose sanctions on counsel for the failure to preserve. I’ve mentioned this a couple of times, but I want you to take it to heart. The Court here declined to extend sanctions to counsel, finding that Oakley knew that he had an obligation to preserve and probably wouldn’t have done so even if they told him to. But is it really appropriate to leave that obligation to preserve to our clients? Are they now required to understand the technology available and take those steps themselves? That doesn’t seem reasonable, particularly where a client is an individual, as is the case here. Maybe with a corporation who’s a serial litigant, we could put them on notice. Nevertheless, I’m sure that Oakley didn’t want to throw his lawyers to the wolves. But be ready, because someone will, and you may be subject to sanctions. We’re seeing more and more cases of lawyers subject to sanctions for discovery violations and you need to be aware of it.
Conclusion
That’s our Case of the Week for this week. Be sure to follow the Meet and Confer podcast on your favorite platform, or if you prefer, you can follow us on our blog at Minerva26.com/blog. If you’re interested in seeing how Minerva26 can help you engage in better discovery strategy, please visit us at Minerva26.com.
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Have a great week!
