When Evidence Auto-Deletes: Winning and Defending Sanctions for Lost Texts and Chats

Anna Mercado Clark, Partner and Chief Information Security Officer | Phillips Lytle LLP

Anna Mercado Clark leads Phillips Lytle’s Data Privacy and Cybersecurity and e-Discovery practices, co-leads its Cryptocurrency and Blockchain team, and serves on the firm’s Governing Committee as Partner and Chief Information Security Officer. Her practice spans data privacy and cybersecurity, e-discovery, business litigation, white collar defense and government investigations, intellectual property, and international business law.

• Education & Credentials

Ms. Mercado Clark earned her J.D. from Fordham University School of Law in 2005 and her B.A. from Rutgers University in 2002. She is admitted in New York and New Jersey, before the U.S. District Courts for the Eastern, Northern, Southern, and Western Districts of New York and the District of New Jersey, and before the U.S. Courts of Appeals for the Second and Eleventh Circuits. She holds the CIPP/E, CIPP/US, and CIPM certifications and is a Fellow of Information Privacy (FIP).

• Recognition & Leadership

Her work has been recognized in Chambers USA: America’s Leading Lawyers for Business (2026) and by The Legal 500 US, which ranked her Tier 1 in Cybersecurity, City Elite – New York (2026). She was named among the Corporate Counsel Business Journal’s 50 Women to Watch (2026), was selected to New York Metro Super Lawyers from 2021 through 2025 and became an International Association of Privacy Professionals Information Privacy Fellow in 2021.

• Professional Involvement

She is a past president of the National Asian Pacific American Bar Association and a founding member of the Filipino American Lawyers Association of New York. She serves on Law360’s Cybersecurity & Privacy Editorial Advisory Board (2022–2026), participates in the Electronic Discovery Reference Model (EDRM), including its GDPR project, and is active in the American Bar Association’s Business Law and Science & Technology Law Sections and as a Special Advisor to its Commission on Women in the Profession. She has also served on the Steering Committee of the Collaborative Bar Leadership Academy, including as its Vice Chair in 2023.

• Experience

A former Assistant District Attorney, Ms. Mercado Clark also teaches as an adjunct professor at Fordham University School of Law, where her courses include Fundamental Lawyering Skills and Privacy and Security. She writes and speaks frequently on cybersecurity, privacy, artificial intelligence, and litigation topics.

Jeff Martin, Senior Digital Forensics Analyst and Expert Witness | Evidence Solutions

Jeff Martin is a certified Digital Forensics Expert with over 20 years of experience and a Digital Evidence Expert Witness at Evidence Solutions, Inc. He specializes in cell phone forensics, computer forensics, cybersecurity, EMR/EHR forensics, and audio/video/imagery forensics, and has conducted hundreds of digital forensics investigations involving the acquisition, preservation, and analysis of data in state and federal courts. Before joining Evidence Solutions, he served as an Advanced Digital Forensic Analyst with the Michigan State Police Computer Crimes Unit and earlier spent a decade as Chief Information & Security Officer in the financial industry. He is a licensed private investigator in Arizona, Texas, and Michigan.

• Education & Credentials

Martin holds a B.S. in Computer Information Systems from Northern Michigan University and an M.S. in Cyber Security & Information Assurance from Davenport University. His certifications include Certified Forensic Computer Examiner (CFCE), Cellebrite Certified Logical Operator, Cellebrite Certified Physical Analyst, Magnet Certified Forensic Examiner, X-Ways and Advanced X-Ways training, and Hawk Analytics cellular technology, mapping, and analysis training.

• Recognition & Leadership

He maintained a 100% conviction rate across his caseload with the Michigan State Police, and received an award for analyzing vehicle GPS data, cell tower triangulation, and cellphone records to locate a homicide victim buried in a remote forest.

• Professional Involvement

Martin is a faculty instructor at Northern Michigan University and Davenport University and an adjunct instructor teaching Cybercrime & Digital Forensics and the Computer Hacking Forensic Investigator (CHFI) certification course, as well as digital forensics search and seizure at the police academy. He serves as a certification coach for the CFCE credential through IACIS, has trained a dedicated group of judges, magistrates, and attorneys in digital evidence, and is a member of Michigan InfraGard, the Northern Michigan University Cyber Security Advisory Council, and IACIS.

• Experience

His forensic caseload spans over 550 drive imaging examinations, over 700 cellular phone analyses, and over 500 external media devices. He has qualified as an expert in digital forensics examinations in numerous jurisdictions across the United States and in the Cayman Islands. Earlier in his career he served from 1995 to 2007 in the United States Army and Michigan Army National Guard as a military police, protective services, and military intelligence officer.

SESSION 1 – Building the Sanctions Motion When Messages Auto-Delete | 12:00pm – 1:00pm

This session walks attorneys through the evidentiary and procedural framework for building a winning spoliation sanctions motion when opposing parties have lost or destroyed text messages, chats, or other ephemeral communications through auto-delete functions. Attendees will learn the two-tier Rule 37(e) structure, how courts distinguish negligent deletion from intent to deprive, and the specific evidentiary record—forensic, documentary, and deposition-based—needed to support sanctions ranging from curative measures to adverse inference instructions. Attorneys leave with a practical motion-building checklist grounded in the most significant 2024–2025 decisions.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Litigation Holds and Preservation Defense for Messaging Platforms | 1:10pm – 2:10pm

This session examines how to build and defend a legally sufficient litigation hold when custodians communicate on ephemeral and auto-deleting messaging platforms. Attorneys will learn what courts now require under Rule 37(e) including platform-specific instructions, administrator-level auto-delete suspension, and compliance monitoring — and will analyze the compliance failures in Epic v. Google, FTC v. Amazon, and Safelite v. Lockridge. Attendees leave with a working framework for designing, issuing, and documenting holds that withstand sanctions scrutiny in federal court.