[Editor’s Note: This article has been republished with permission. It was originally published January 28, 2026 on the Minerva26 Blog]
Podcast | Transcript
If you’re still treating text messages like “informal” evidence—something you’ll circle back to later, or something your client will “just keep”—Peddada v. Catholic Health Initiatives Colorado is your warning shot.
The Facts
This decision came out of the District of Colorado in an order entered January 6, 2026 by Magistrate Judge Maritza Dominguez Braswell. The underlying case is employment-related. The plaintiff, a radiation oncologist, was terminated in May 2022. A little over a year later, in July 2023, he sued, alleging violations of the Americans with Disabilities Act, the Rehabilitation Act, wrongful discharge, unjust enrichment, and civil conspiracy—seeking several million dollars in damages.
But the merits aren’t why you should read this. The discovery fight is.
Because the sanctions dispute in Peddada centers on what should be the least surprising evidence in the entire case: text messages between a husband and wife, and between the plaintiff and his brother, during the exact window when his employment was falling apart and he was terminated. And when those messages were missing—selectively missing—the court didn’t shrug. It dug in.
The parties entered an ESI order in June 2024 that required preservation of all text messages from January 1, 2021 through the date of that order. That’s not a casual obligation. That’s a high-risk commitment—because when you agree to preserve all texts, you’re telling the court you understand how fragile mobile data is and you’re going to take it seriously.
Fast forward to early 2025. The defense alleged the plaintiff hadn’t produced all of his texts with his wife and brother—especially from the critical period of late 2021 through mid-2022, right before and after his termination. The plaintiff initially responded the way we see too often: some version of “I’ve produced what I have,” without giving anyone confidence that what he had was complete.
So the court entered a discovery order requiring him to do what litigators should be doing as a matter of routine in any case where mobile data matters: conduct a thorough review of his phone and produce all responsive texts, even if third parties had already produced them. And the court didn’t just say “be thorough.” It warned that discrepancies or irregularities could become the basis for follow-up requests and that the review needed to use the “necessary technology” to ensure a complete production.
That language matters. Judges are telling us—over and over—that “my client looked” isn’t enough. “We asked him to preserve” isn’t enough. A text-message preservation plan that relies on your client’s best intentions is not a preservation plan. It’s a gamble.
Then the comparison happened. The defense compared the productions from the wife and brother to what was produced from the plaintiff’s phone, and it became clear there were messages missing from the plaintiff’s device—messages the wife and brother’s productions made obvious had existed. That’s not a benign gap. That’s the kind of fact pattern that forces a court to ask only two questions: what happened to the data, and why should the other side bear the consequences?
The court issued additional orders, trying to get a straight answer about the gap. And this is where the situation escalated from “discovery dispute” to “sanctions exposure.” The plaintiff’s vendor submitted a declaration that, incredibly, could not confirm or deny whether deletion was possible. If you’ve ever wondered what it looks like when a record starts to turn against you, it looks like that.
Judge Braswell then issued a third discovery order requiring the expert to directly answer the question: was it possible that text messages between the plaintiff and his wife and brother during the relevant gaps were deleted? If the expert believed they weren’t deleted, what tools and methods supported that conclusion? And if they were deleted, could anyone determine that and retrieve them?
On June 13, 2025, the expert responded: yes, deletion was possible. He also said it was “highly unlikely” that a full filesystem extraction would recover additional deleted messages—and that the method wasn’t supported anyway because the plaintiff’s phone was running iOS 18.5, while the tool only supported full filesystem extraction up to iOS 18.3.2. He also confirmed the phone was set to auto-save messages.
That response is the perfect snapshot of why litigators have to get in the preservation game early—because by the time you’re in front of a judge explaining that an operating system update affects your acquisition options, you’re no longer preserving evidence. You’re explaining why evidence can’t be recovered. That’s not strategy. That’s damage control.
The Court’s Analysis
And then comes the legal analysis under Rule 37(e). The court walks through the framework: whether ESI is lost, whether it should have been preserved, whether reasonable steps were taken, and whether the missing texts can be restored or replaced. The defense here did what litigators have to do if they want a court to find intent: they created a record that made it hard for the court to accept an innocent explanation. The court pointed to the common-sense reality of the situation—if your job is disintegrating and you’re facing termination, you’re texting your spouse. And the court said it would have to ignore common sense to believe they didn’t exchange a single text around the time he was fired, especially when the record showed texts about work stress and related issues before and after that period.
That matters, because this is where courts are now: intent doesn’t require a confession. Courts infer intent from the totality of the facts, especially where the gaps show up exactly when the messages would be most relevant.
Now here is the twist—and it’s the part that makes this decision more dangerous than it looks at first glance.
The defense asked for dismissal. The court recognized it had authority under Rule 37(e)(2) to impose severe sanctions when there’s intent to deprive. But Judge Braswell declined to dismiss the case. She indicated that exclusion of evidence or an adverse inference instruction would likely be sufficient—but she didn’t impose those sanctions herself. Instead, she left the bigger sanctions question to the district judge after summary judgment.
Which means the plaintiff dodged a bullet—at least for now.
Let’s be clear: this is the kind of record that can end cases. The plaintiff is suing for millions of dollars, the court is dealing with missing texts during the most relevant window, and the court is openly relying on common sense and circumstantial evidence to assess intent. And yet, because of how the magistrate judge handled the remedy, the case can keep moving while the real consequences are deferred.
That should bother you. Because when sanctions are delayed to the back end of litigation—after summary judgment, and potentially only in the shadow of trial—the deterrent effect collapses. Less than 1% of cases ever get to trial. An adverse inference instruction that only matters if you actually reach a jury is not much of a deterrent. And if meaningful sanctions are pushed further down the road, we’re not preventing spoliation—we’re just pricing it into the litigation process.
So here’s the practical message this case delivers, and it’s not subtle: litigators have to be proactive in identifying and keeping evidence. On the plaintiff side, you need to get eyes on the phone early. You need to understand what exists, confirm settings, confirm backups, and take active steps to preserve—because if you discover gaps after the fact, you’re already fighting on credibility terrain you don’t control.
On the defense side, if you suspect texts are central and you think they’re at risk, you need to move quickly and get an order designed to prevent spoliation. Don’t wait for production. Don’t assume compliance. Don’t assume “they’ll do the right thing.” The longer you wait, the more you’re litigating about what used to exist instead of obtaining what does.
That is the preservation game. And Peddada is another reminder that if you’re not playing it early, you’re not playing it at all.
She is a co-author of Electronic Discovery and Records and Information Management, and host of Case of the Week at Minerva26. As Principal at ESI Attorneys, Kelly manages the boutique eDiscovery and information law firm that acts as operational business partners with its clients to advise law firms, corporations, and municipalities on all areas of electronic information including eDiscovery, privacy, cybersecurity, and information governance.
Kelly is also the CEO of Minerva26. — a SaaS-based practical resource for litigators handling eDiscovery — that curates discovery decisions, rules, and additional content. She is developing an online academy to provide on-demand education for lawyers and legal support professionals to stay abreast of changes in the law and technology that affect litigation and clients’ obligations to respond.
You can reach Kelly at [email protected], join her Facebook community group at Let’s Talk eDiscovery, or connect with her on Twitter @kellytwigger.