What’s “That Smell”— Lynyrd Skynyrd and Spoliation

In October of 1977, the Lynyrd Skynyrd band and its support members were traveling by plane when their plane crashed in Mississippi killed several people on board, including Lynyrd Skynyrd’s lead singer and song writer, Ronnie Van Zant.  What many people may not know, however, is the lawsuit that occurred years after the crash.  In fact, there was more than one. 

Ronnie Van Zant’s widow, Judith, and two surviving band members, entered a “blood oath” after the crash.  They promised each other that the name “Lynyrd Skynyrd” would never be used again.  Ten years later, the surviving band members, Gary Rossington and Allen Collins, went on a Lynyrd Skynyrd tribute tour.  Judith brought a lawsuit against them, which ultimately ended up with a settlement termed “The Consent Order.”  Grondin v. Rossington, 690 F.Supp. 200 (S.D.N.Y. 1988).  Artimus Pyle, Lynyrd Skynyrd’s drummer who survived the crash, was a defendant in the Grondin case.   This Consent Order was modified without executing any agreements or court order over the course of approximately twenty-five years.

In 2016, a film company, Cleopatra Records, began talks with Pyle about making a movie about the band.  The record company hired Jared Cohn to write and direct the film.  The efforts and preparation for the movie continued despite a cease and desist letter sent by Judith.  As a result, Judith initiated another lawsuit against Cleopatra Records and Pyle.  Ronnie Van Zant, Inc. v. Pyle, 270 F.Supp.3d 656 (S.D.N.Y. 2017).  Despite the initiation of the lawsuit, Jared Cohn switched cell phones and his cell phone provider.  Although a log of phone calls and some information was backed up, text messages and other data was not preserved.  In June of 2017, Plaintiffs moved for an adverse inference sanction for the spoliation of evidence.  Ultimately, the court found that Plaintiffs were entitled to the adverse inference because Defendants intended to lose the evidence.  This means there is a presumption that the lost or destroyed evidence was unfavorable to the Defendants.  Oops.  That really stinks. 

Spoliation is the destruction of evidence, the alteration of evidence, or the lack of preservation of evidence that another can use in a pending or reasonably foreseeable litigation.   As noted above, there are some serious consequences if evidence is not preserved.  It could have been worse.  The court could have dismissed the whole case and entered a default judgement, which means they automatically lose.  That would have really stunk. 

Eventually, an appeals court ruled that the movie about Lynyrd Skynyrd did not violate the Consent Order and lifted an injunction to prevent the movie’s release.  Ronnie Van Zant, Inc. v. Pyle, 906 F.3d 253 (2d Cir. 2018).  But the lesson is clear—if there is a lawsuit or one reasonably expected to occur, companies and individuals need to preserve any related information—“You Got That Right.”

If you are a party to the lawsuit, there are very serious consequences for violation of this rule.  Even if the company or individual is not a party to the lawsuit, minimizing any risk of liability should be done by implementing a retention policy and contacting an experienced attorney.   Call an experienced attorney at Goosmann Law Firm in Sioux Falls, Sioux City, or Omaha today.