Another Example of Failure to Preserve Text Messages Leading to Dismissal

Can the intentional deletion of text messages really cause a lawsuit to crumble? Join Kelly Twigger, as we unravel the intricacies of a pivotal Ninth Circuit Court of Appeals decision that led to the dismissal of a case due to spoliation sanctions. This episode uncovers the problematic actions of plaintiff Alyssa Jones in the Jones v. Riot Hospital Group LLC case, focusing on her alleged deliberate destruction of critical communications. By highlighting the appellate court's affirmation of the district court's decision, we delve into the concept of bad faith in handling electronically stored information and the dire consequences of not adhering to discovery obligations.

Explore the nuances of Rule 37(e)(2) sanctions and grasp the broader implications for litigation strategy and data preservation. We dissect how the Ninth Circuit's interpretation of intent and prejudice played a crucial role in this case’s dismissal and the inescapable need for comprehensive preservation of mobile data. With expert insights, this episode serves as a crucial reminder for legal professionals on the strategic use of discovery tools and taking proactive measures to preserve electronic data.
 
 Jones v. Riot Hosp. Group, LLC,
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Chapters

• 1:30 Introduction
• 2:41 Case Facts
• 5:50 Case Analysis
• 13:20 Key Takeaways

Transcript

Kelly Twigger: 0:13

Welcome to the Case of the Week podcast, where each week, we break down a recent decision in electronic discovery case law and talk about the practical impact for you and your clients and keep you up to date on your obligations with electronically stored information as evidence. If you're a litigator, legal professional or you love the power of ESI as much as I do, this is the place to be. I'm Kelly Twigger, the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys, with more than 25 years of experience navigating the evolving landscape of litigation and eDiscovery. I'm a practicing attorney, author, speaker, entrepreneur and now podcaster who works as a discovery strategist and expert for clients at ESI Attorneys and to provide that knowledge to all legal professionals through our e-discovery assistant platform. In each episode, we'll tackle a new decision in e-discovery case law and how it shapes both your litigation strategy and planning for risk mitigation. If you're ready for blunt, actionable insights that keep you ahead of the curve, and maybe a few laughs along the way, this is your go-to podcast. Subscribe or follow now to start embracing the episode of our case of the week series brought to you by eDiscovery Assistant.

Kelly Twigger: 1:36

This week's decision raises yet another issue on the failure to preserve text messages and the resulting sanctions this time from the Ninth Circuit Court of Appeals. All right, let's dive into this week's decision from the Ninth Circuit Court of Appeals. This is the second federal appellate decision we've seen in the last 12 months on spoliation sanctions for failure to preserve text messages. This week's decision comes to us from the Jones v Riot Hospital 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 seven 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. All those issue tags are not applied, all right. So what are the facts that were here before on this appeal? Well, we're before the Ninth Circuit on appeal of the dismissal of the case by the district court finding that the plaintiff intentionally spoliated text messages.

Kelly Twigger: 2:53

The plaintiff here, alyssa Jones, was a waitress in a bar in Scottsdale, arizona. She sued the bar owner and his company, riot Hospitality Group, alleging violations of Title VII and various tort claims. During discovery, jones produced text messages between herself and her friends, as well as work colleagues between December 2015 and October 2018. Upon receiving those text messages in discovery, defense counsel noted gaps in regular patterns of communication. Where Jones had been communicating with friends and colleagues daily, she would suddenly stop Now, in response to a subpoena. Following up on the review of that data, jones' third-party imaging vendor produced a spreadsheet showing that messages between Jones and her co-workers had been deleted from Jones' mobile phone. Then, in depositions, two of the co-workers, both of whom Jones had identified as prospective trial witnesses, testified that they had exchanged messages with Jones about the case since October 2018.

Kelly Twigger: 3:55

Jones then failed to comply with the district court's order to produce those messages, and the district court ordered the parties to jointly retain a third-party forensic search specialist to review the phones of Jones and three prospective witnesses. The district court allowed Riot to subpoena the three witnesses to produce their most recent communications regarding plaintiffs' claims and ordered Jones to provide her phone to the agreed-upon forensic specialist. The expert was to extract messages containing stipulated search terms and send them to Jones's counsel, who would then send all discoverable messages to Riot and produce a privilege log of those that were not produced. So third party agreed upon expert reviews text messages, gathers them, sends them to plaintiff's counsel. Plaintiff's counsel is then supposed to send them to defense counsel after reviewing them for privilege. But Jones and two of the witnesses ultimately delivered the phones to the expert after much hoo-ha and the expert extracted messages and sent them to counsel. But counsel failed to forward them to riot, despite multiple district court orders that he do so and several deadline extensions. The district court finally ordered the expert to send all the non-privileged messages directly to Riott and later assessed almost $70,000 in fees and costs against Jones and her counsel for failure to comply with the court's orders.

Kelly Twigger: 5:15

After finally receiving the text messages, riott moved for terminating sanctions under Federal Rule of Civil Procedure 37E2, submitting an expert report that identified quote an orchestrated effort to delete and or hide evidence subject to the court's order. Close quote the district court dismissed the case with prejudice under Federal Rules Civil Procedure 37E2, finding that Jones deleted text messages and cooperated in the deletion of messages by her witnesses intending to deprive Riot of their use in litigation. And plaintiff then appealed, arguing that she did not violate Rule 37E and that the spoliation report from the expert should have been excluded. Okay, so what's the court's analysis here? Well, the court begins with the standard of review on appeal, which is the high bar of abuse of discretion by the district court, and that standard requires the Ninth Circuit to determine whether or not the district court made any clear errors in the facts underlying the ruling. Appeal of the admission of the expert report is based on the abuse of discretion standard as well.

Kelly Twigger: 6:15

Now, the district court found that Jones intentionally spoliated relevant text message with her co-workers from 2017 and 2018 and coordinated with her witnesses to delete messages from 2019 and 2020. The appellate court found that the district court drew reasonable inferences from the circumstances and then found that Jones did so with the intent to deprive Riot of using the messages in this suit. So that was a ruling by the appellate court, not the district court. Apologies for that confusion. The district court also found that the deleted messages could not be restored or replaced through additional discovery and warranted dismissal On appeal. Then Jones did not contest that she had a duty to preserve that they were deleted or that the text messages could be restored or replaced, only that her conduct was not willful or prejudicial to riot. So we're strictly talking about intent on appeal that Joan's conduct here was not willful, where she clearly engaged in a pattern of not only deleting messages from her own phone but coordinating the deletion of messages from the same time from those of her friends. I have to wonder what the value is of making this argument on appeal.

Kelly Twigger: 7:31

The Ninth Circuit disagreed with the plaintiff's argument and citing to the 11th Circuit in the Skanks go versus bagel heads case that we covered on episode 103 on the case of the week, as well as the committee notes to rule 37, the court found that intent is most quote naturally understood as involving the willful destruction of evidence with the purpose of avoiding its discovery by an adverse party. Close quote that's evidence that we clearly have here willful intent. The panel also agreed that a district court may consider circumstantial evidence in determining whether a party acted with the intent required for Rule 37E2 sanctions, including the timing of destruction, affirmative steps taken to delete evidence and selective preservation. The court rejected plaintiff's argument that the expert could not confirm that every deletion of a text message was intentional and found that there was circumstantial evidence that Jones quote intentionally destroyed a significant number of text messages and collaborated with others to do so. Close quote. So, essentially, jones is arguing hey, you can't prove that I intentionally deleted these text messages, only that they're gone. And what the appellate court is saying is the district court has the right to look at a set of circumstantial facts, and those here supported the district court's inference that the deletions were intentional. Other facts that supported the district court's findings according to the circuit court, jones could not explain why messages to other employees at the bar were selectively deleted in 2017 and 2018. With respect to the 2019 and 2020 messages, the court pointed out that quote while much of the content of the deleted messages is unknowable. Close quote a screenshot of a message sent by a witness to Jones but missing from Jones's phone in its original form quote shows that plaintiff deleted at least one message that had a direct bearing on her case. Close quote Jones and one of the witnesses obtained new phones shortly after they were ordered to hand their devices over for imaging. Neither Jones nor the witnesses produced the earlier phones for imaging, effectively preventing discovery of messages deleted from those phones.

Kelly Twigger: 9:35

Now Jones also argued that her production of thousands of other text messages negated the intent and the prejudice requirements of Rule 37E2, essentially saying, hey, we produce thousands of other stuff, we shouldn't be required to produce more and that should negate the prejudice here. The court rejected that argument as well, finding that production of some evidence does not excuse destruction of other relevant evidence and that the report from plaintiff's own vendors suggests that she deleted texts from the same time periods covered by her productions, meaning that plaintiff engaged in a huge pattern of producing information knowing that she had destroyed information from those same relevant time periods. Now the court here on appeal makes an interesting point that Rule 37E2 does not mention prejudice as a prerequisite to sanctions, including dismissal. According to the court, the advisory committee notes explain that a finding of prejudice was not included as a requirement because, quote the finding of intent required by Rule 37E2 can support not only an inference that the lost information was unfavorable to the party that intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss of information that would have favored its position. Now that's an interesting note from the court here, because we've seen an awful lot of analysis as to prejudice on sanctions motions under Rule 37E2. So we're going to have to compare and contrast the ruling here in Riot to some of the other decisions that we've seen previously.

Kelly Twigger: 11:08

Now the Ninth Circuit found that the district court did rely on that inference as to prejudice here and that that was acceptable. The court also rejected plaintiffs' arguments that less drastic sanctions could have been imposed to cure the prejudice, finding that the district court expressly considered less drastic sanctions and concluded that none were likely to be effective. The Ninth Circuit stated that quote considering the nature of the spoliated ESI and Jones and Nathanson's repeated violations of court orders, even after monetary sanctions had been imposed, the district court's conclusion was not an abuse of discretion. Close quote Nathanson was Jones' counsel. Jones also argued that the district court's order requiring her and others to turn over their phones were improperly issued. The Ninth Circuit rejected that argument, citing to the case management order and to Arizona rules. The court also rejected challenge to the orders based on privacy issues, noting that while there is a strong privacy issue in the contents of mobile phones, that those privacy issues are either addressed by a protective order or on proportionality grounds under the federal rules. Here the district court granted the only protective order that the plaintiff sought on privacy grounds and that the text messages were clearly proportional to the needs of the case.

Kelly Twigger: 12:23

Court also found that the facts of this case fit squarely within the decision in Lewis v Archer Daniels Midland Company, in which the district court noted that courts have allowed neutral experts to examine electronic devices quote when the moving party has sufficiently demonstrated need and inability to obtain relevant information by more conventional means, and measures adequate to protect the privacy or commercial concerns of the party who owns the device are imposed. Close quote. So in essence, the court says here look, we gave you every opportunity to turn the information over yourselves, but you've obviated it in multiple ways, so we're going to order a third-party, neutral. Finally, the court also rejected any abuse of discretion as to the trial court's awarding of costs to the defendant on the motion for sanctions. We didn't cover it specifically here, but the court also did allow the admission of the expert reports that was the basis of finding the intentional destruction of the text messages.

Kelly Twigger: 13:21

Okay, so what are our takeaways from this decision? Well, what's really important here is looking at what the defendant did for the underlying basis of this motion for sanctions. And the reason that defendant was able to make this motion for sanctions and get the case dismissed was by paying very close attention to and comparing the discovery of text messages that they received. Note that the whole issue arose here because the defendant identified gaps in the timing of text messages sent that were consistent between the plaintiffs and the other witnesses, and you need to make sure that you've got tools that can allow you to do this analysis and spend the time early in the case to see what the data tells you. It's a fundamental principle of e-discovery that to do it effectively you have to get into the data, and that's what the defendants did here that allowed them to make this motion. Next, be prepared to ask questions about the data practices of your witnesses at depositions after you have reviewed the data. Here, the witnesses testified that they exchanged messages with the plaintiff during a time when those messages were missing. When you know your data, you can use it, in the patterns that you see, to help you build a case, whether it's on the merits for a motion to compel or for sanctions, like in this case. If you get in the data and use it to instruct you how to talk to the witnesses, how to follow up, what else should be there Now?

Kelly Twigger: 14:43

This decision is another in a series finding intent and dismissing cases for failure to preserve under Rule 37E2. It's become more important than ever to ensure that you are recognizing the need to preserve data from mobile devices and to work with your clients early on to get that done. There are multiple tools at all cost points to allow you to do that effectively. Plaintiff's conduct here was clearly intentional, but we are also seeing case law where a pattern of behavior evidencing a failure to preserve can also lead to dismissal, even without that intent. Courts are finding that bad faith in failing to preserve equals intent. Now you can read through those decisions in our 2023 case law report and see the pattern that is emerging. That pattern suggests that text messages and other communication tools used on mobile devices are growing in importance exponentially. Don't wait until the case is upon you that requires preservation. Instead, actively seek out solutions that will allow you to preserve data from devices proactively to preclude potential sanctions.

Kelly Twigger: 15:44

That's our case of the week for this week. Thanks so much for joining me. We'll be back again next week with another decision from our eDiscovery Assistant database. As always, if you have suggestions for a case to be covered, please drop me a line, and if you'd like to receive our Case of the Week delivered to your inbox via our weekly newsletter, you can sign up at ediscoveryassistantcom backslash blog. Thanks for joining me on the case of the week podcast. Tune in next episode as I discuss a new decision in the discovery case law and identify the issues you need to be paying attention to and how they can help you do better discovery for your clients and leverage the power of esi. Be sure to subscribe and leave a review to help others discover the show and be kept in the know on all things electronic discovery. I'm'm Kelly Twigger. See you next time.