Alyssa Jones worked as a waitress at a Scottsdale bar. In 2017, Jones sued the bar’s owner-operator and his company, Riot Hospitality Group (collectively “Riot”), alleging Title VII violations (among other claims). During discovery, Riot obtained text messages between Jones, her friends, and co-workers between 2015 and 2018. But, among the texts were instances when Jones abruptly stopped texting with people she had been messaging almost daily. In response to a subpoena, an imaging vendor produced a spreadsheet showing that messages between Jones and her co-workers had been deleted from Jones’ mobile phone.
In subsequent depositions, two of the co-workers, both of whom Jones had identified as prospective trial witnesses, testified that they had exchanged text messages with Jones about the case since 2018. After Jones failed to comply with an order to produce those messages, the court ordered the parties to jointly retain a forensic search specialist to review the phones of Jones and three prospective witnesses.
The forensic specialist extracted messages and sent them to Jones’ counsel, Philip Nathanson, but the lawyer failed to forward any texts to Riot, despite multiple court orders that he do so and several deadline extensions. The court then ordered the forensic specialist to send all non-privileged messages directly to Riot and assessed $69,576 in fees and costs against Jones and her counsel Nathanson.
After receiving the text messages, Riot moved for terminating sanctions under Federal Rule of Civil Procedure 37(e)(2). Riot submitted a report from the forensic specialist, who concluded, after comparing the volume of messages sent and received between phone pairs, that “an orchestrated effort to delete and/or hide evidence subject to the Court’s order has occurred.” The district court dismissed the case with prejudice, finding that Jones deleted text messages and cooperated in the deletion of messages by her witnesses so that Riot could not have them.
Jones and Nathanson appealed. On appeal, Jones argued that the court abused its discretion by dismissing her case because her conduct was not willful.
The U.S. Court of Appeals for the Ninth Circuit disagreed. To dismiss a case under Rule 37(e)(2), a district court need only find that the following Rule 37(e) prerequisites have been met: 1) electronically stored information (ESI) that should have been preserved is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery; 2) that the spoliating party acted with the intent; and 3) lesser sanctions are insufficient.
While Rule 37(e) does not define “intent,” the Court said the context of Rule 37(e) showed that the word involves the willful destruction of evidence with the purpose of avoiding its discovery. A district court may consider circumstantial evidence of intent, such as: the timing of the destruction; affirmative steps taken to delete evidence; and selective preservation.
The Ninth Circuit found ample that Jones intentionally destroyed a significant number of text messages and collaborated with others to do so. For example, Jones could not explain why messages to other employees were selectively deleted in 2017 and 2018. As to the 2019 and 2020 messages, a screenshot of a message sent by a witness to Jones but missing from Jones’ phone, showed that Jones deleted at least one relevant message. Moreover, Jones and one of the witnesses obtained new phones shortly after they were ordered to hand over their devices for imaging. Neither Jones nor the witnesses produced the earlier phones for imaging, thereby preventing discovery of deleted messages.
The Ninth Circuit rejected Jones’ arguments that her production of thousands of texts negated her bad intent. The Court found that production of some evidence does not excuse destruction of other relevant evidence.
The Ninth Circuit also rejected Jones’ argument that the District Court abused its discretion by considering the forensic specialist’s report, and by awarding attorneys’ fees and costs. The Court found that the district court’s discovery orders instructing Jones and others to hand over their phones to a forensic search specialist were proper.
Jones v. Riot Hospitality Group LLC, 2024 U.S. App. LEXIS 5251 (9th Cir.).
Note: This case shows that destroying evidence or preventing evidence from being discovered can result in dismissal of a case, and an order to pay the other sides attorneys’ fees and costs.