“Is it worth $642,337.65?”
Courtesy of the Honorable Richard J. Sullivan, that’s your ready-made response the next time a client tells you that they can’t be without their phone for preservation for even part of a day. Because that’s what Sullivan sanctioned Charles Oakley for failing to preserve his text messages. Oakley v. MSG Networks, 792. F.Spp.3d 377 (S.D.N.Y., July 23, 2025).
Oakley, former Chicago Bull (and NY Knickerbocker), is now suiting up as Plaintiff in his lawsuit against MSG for being tossed as a spectator from a Knicks game at Madison Square Garden for being unruly. Shocker, I know.
“It was ‘[m]ore important for me to have a phone’” was Oakley’s defense for choosing to migrate to a new phone, which he admitted knowing would destroy text messages rather than pausing to preserve the messaging content of his phone.
The Court was having none of Oakley’s bull in attempting to justify his failure to take affirmative steps to preserve his phone’s content, adopting verbiage from MSG’s expert in its opinion:
“[Oakley’s failure to affirmatively preserve was] ‘unreasonable given the ever-present risk of losing or breaking mobile devices, [and] the relative ease of preserving relevant information on such devices[.
Oakley’s counsel didn’t fare much better, and was also found not to have taken reasonable steps under Rule 37(e) to monitor and otherwise ensure Oakley’s compliance with the rule.
For this, Oakley was ordered not only to pay $642,337.65 for MSG’s legal fees and costs in prosecuting its sanctions motion, but MSG was also granted permission to introduce evidence related to Oakley’s loss of his text messages at trial. And!, the court granted that an adverse inference instruction also be read to the jury at trial.
$642,337.50 and the additional damage yet to be realized as a result of the adverse inference instruction, all of which could have been avoided with just a few hours of inconvenience and a relative few pennies.
“$642,337.65. Is it worth that?”
Lost phone, broken phone, destruction caused by ordinary usage. As Oakley underscores, courts can no longer be counted on to entertain claims of ignorance as to these widely known evidence destroyers when assessing spoliation claims.
Whether Protek or some other sufficiently qualified vendor, lean into your favorite expert to quickly and competently preserve mobile device data (don’t forget related cloud-stored data!) and avoid your client being gratuitously boxed out from the verdict it deserves.
One phone upgrade. Hundreds of thousands in sanctions. A cautionary tale for every litigator.
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