Case of the week legal technology

The Duty to Preserve Text Messages Strikes Again

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If you’ve been following my Case of the Week series, you know we’ve seen a rising trend of courts issuing harsh sanctions, including dismissal, for failure to preserve text messages and other data from mobile devices. This week’s decision from the 9th Circuit in Jones v. Riot Hosp. Group, LLC doubles down on that trend in a big way.

The Facts

Alyssa Jones, a former waitress at a bar in Scottsdale, sued her employer Riot Hospitality Group alleging violations of Title VII and various torts. During discovery, Jones produced some text messages between herself, friends and co-workers from December 2015 to October 2018. 

However, Riot’s attorneys noticed gaps in the productions where communications appeared to be missing during periods when Jones had been texting regularly. They subpoenaed Jones’ third-party imaging vendor, who revealed that messages between Jones and co-workers had been deleted from her phone.

Two of Jones’ colleagues, listed as prospective trial witnesses, then testified that they had in fact exchanged messages with Jones about the case after October 2018 — the exact time period missing from her productions.

The Preservation Efforts

To get to the bottom of this, the Court ordered the parties to jointly hire a neutral forensic examiner to image the phones of Jones and three witnesses. The examiner would extract any messages hitting certain agreed-upon search terms and send them to Jones’ counsel, who would review for privilege and produce the rest to Riot.

Sounds reasonable, right? Except Jones and her counsel threw up multiple roadblocks:

  • They delayed providing the phones to the examiner 
  • Jones’ counsel failed to produce the extracted messages to Riot despite court orders
  • The Court had to order the examiner to send non-privileged messages directly to Riot
  • Jones and a witness conveniently got new phones right after being ordered to turn them over

In the end, Riot was awarded almost $70,000 in fees and costs against Jones and her counsel for their “failure to comply with the Court’s orders.”

The Sanctions Motion

Having finally received some of the withheld texts, Riot filed for terminating sanctions under FRCP 37(e)(2) based on an expert’s report finding “an orchestrated effort to delete and/or hide evidence.”  

The District Court agreed, dismissing the case after finding that Jones intentionally deleted texts and “cooperated in the deletion of messages by her witnesses intending to deprive [Riot] of their use in litigation.”

The Appeal 

On appeal, Jones didn’t contest her duty to preserve, that texts were deleted, or that they couldn’t be recovered. Her only argument? That she didn’t intend to deprive Riot of the messages.

That’s a questionable argument – Jones clearly coordinated deletion of relevant messages from multiple devices over an extended period. That’s about as intentional as it gets.

The 9th Circuit quickly shut that nonsense down, citing the “ample circumstantial evidence” supporting the District Court’s findings:

  • Jones couldn’t explain why only co-worker messages were deleted in 2017-2018, 
  • A screenshot proved she deleted a message “bearing directly” on her claims, 
  • Jones and a witness got new phones right after being ordered to turn them over, and 
  • Her vendor showed she deleted texts from the same time periods she produced others.

The Court also made some key points about intent and prejudice under Rule 37(e)(2):

  • Intent can be inferred from circumstances like “timing of destruction” and “affirmative steps to delete”,
  • Prejudice is inferred from intent  — there is no separate showing required under the Rule, and 
  • Producing some evidence doesn’t excuse destroying other relevant evidence.

So in essence, the 9th Circuit agreed that the District Court properly applied Rule 37(e)(2) and did not abuse its “considerable discretion” in dismissing based on Jones’ clear intentional spoliation conduct.

The Takeaways

A few key practice points jump out from this decision:

  1. Pay close attention to data patterns and timing gaps in productions. That’s what tipped Riot off to the spoliation here.
  2. Use that data analysis to strategically question witnesses about messaging practices. Don’t let key topics go unexplained.
  3. Get a handle on mobile device data preservation protocols ASAP. Courts are running out of patience on this issue.
  4. Don’t engage in shenanigans when ordered to allow forensic examination of devices. It will only backfire.
  5. Intentional spoliation often arises from an “orchestrated effort” like Jones coordinating deletions across devices. Be alert for those scenarios.

At the end of the day, the key is treating mobile data with the same level of care as other ESI sources. Have a plan, follow it, and preserve everything potentially relevant. Otherwise, you may find yourself on the receiving end of these increasingly harsh sanctions orders.

Let this serve as another warning shot across the bow – preserve those texts and mobile data! Or be prepared to see your case go down in flames.

Kelly Twigger on EmailKelly Twigger on Linkedin
Kelly Twigger
Kelly Twigger is a practicing attorney, software developer, consultant, writer, and speaker on issues in electronic discovery, the development and implementation of legal technology, and how to effectively use data in planning for and during litigation.

She is a co-author of Electronic Discovery and Records and Information Management, and host of Case of the Week at eDiscovery Assistant. 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 eDiscovery Assistant — 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.

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