Applying the principle of proportionality to preservation of electronically stored information (ESI) is gaining traction, as witnessed by recent court opinions, thought leadership and even proposed amendments to the Federal Rules of Civil Procedure. Sometimes application of this principle results in the denial of spoliation sanctions even where a failure to preserve has been established. However, precedential appellate decisions in e-discovery are still rare. In addition, opinions addressing technologies communications such as texting and hardware such as mobile devices have been addressed by very few cases. The recent appellate opinion in PTSI, Inc. v. Haley et. al. is a rare e-discovery case because it is an appellate decision that involves texting, smartphones and the principle of proportionality as applied to preservation.
Employment cases involving the alleged theft of trade secrets commonly include requests by employers for ESI, which employers hope will contain the smoking gun consisting of or pointing to stolen secrets. In PTSI, the Superior Court of Pennsylvania affirmed summary judgment against PTSI (the employer) in just such a case. In its appeal, PTSI argued, inter alia, that the lower court erred when it denied PTSI spoliation sanctions. The appeals court rejected this argument.