Kelly Twigger: #CaseoftheWeek Episode 135: Another Example of Failure to Preserve Text Messages Leading to Dismissal

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Extract from Kelly Twigger’s article “#CaseoftheWeek Episode 135: Another Example of Failure to Preserve Text Messages Leading to Dismissal”

In Episode 135, our CEO and Founder, Kelly Twigger discusses a decision from the 9th Circuit affirming dismissal of a case for intentional deletion of text messages as a sanction for failure to preserve under Rule 37(e) and the increased importance of early preservation of data on mobile devices in Jones v. Riot Hosp. Group, LLC, 2024 WL 927669 (9th Cir. 2024).


Welcome to this week’s Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education. Thanks so much for joining me today.

Each week on the Case of the Week I choose a recent decision in ediscovery and talk to you about the practical implications. This week’s decision raises yet another issue on the failure to preserve text messages and the resulting sanctions, this time from the 9th Circuit Court of Appeals.

Before we get started, if you haven’t yet had a chance to grab our 2023 eDiscovery Case Law Report that discusses the key trends and cases from last year, you can download that today.

All right, let’s dive into this week’s decision from the 9th Circuit Court of Appeals. If you saw my LinkedIn post earlier this week, you know that this is the second federal appellate decision we’ve seen in the last twelve months on spoliation sanctions for failure to preserve text messages.

This week’s decision comes to us from the Jones v. Riot Hosp. Group, LLC case. This is a decision dated March 5, 2024 and the opinion is written by United States Circuit Judge Andrew Hurwitz for the panel. This is the latest of several decisions on this matter that are in our database, so it has been a hotly contested discovery issue. This particular decision has the following issues attached to it: mobile device, form of production, text messages, bad faith, dismissal, spoliation, sanctions, forensic examination, search terms, proportionality, privacy, and failure to preserve. It also very briefly touches on Special Master and third party subpoena, although those issue tags are not applied.

Read more here