Earlier this week, the Ninth Circuit in Jones v. Riot Hospitality Group, 2024 WL 927669 (9th Cir. Mar. 5, 2024) affirmed the dismissal of an employee’s claims against her employer and found that terminating sanctions were appropriate where the employee deleted relevant text messages, and organized with her witnesses to do the same, with the intention of depriving defendant of their use during litigation.
In 2017, Plaintiff Alyssa Jones, a former waitress, sued her ex-employer, Riot Hospitality Group (“Riot”), in Arizona district court for alleged Title VII violations and common law tort claims. During discovery, Riot obtained text messages between the employee, her friends, and her co-workers. In evaluating the messages, the company identified gaps in the text message exchanges wherein the employee suddenly stopped communicating with individuals she had been contacting on a daily basis.
Following a subpoena issued by Riot’s counsel, a third-party vendor produced a spreadsheet that showed the employee had deleted relevant messages between her and her co-workers. The district court issued an order that the employee produce those text messages, but the employee failed to do so. As a result, the district court allowed Riot to subpoena the phones of the employee and three of her witnesses to a forensic specialist, who would extract messages with specific search terms. The forensic specialist sent the text messages to the employee and her counsel, who failed to ever deliver them to Riot, despite multiple orders from the court to do so. After the court ordered the forensic specialist to send the messages to Riot, the court assessed a nearly $70,000 discovery sanction in fees and costs against the employee and her counsel.
Upon receipt of the messages from the forensic specialist, Riot moved for terminating sanctions under Federal Rule of Civil Procedure 37(e)(2), which provides that, where electronically store information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court, upon finding that the party acted with the intent to deprive another party of the information’s use in litigation, may dismiss the action. In determining that the employee had intentionally deleted her text messages to deprive Riot of their use in litigation, and acting in concert with her witnesses to do the same, the district court dismissed the employee’s case, with prejudice.
On appeal, the employee argued that she did not violate FRCP 37(e) and that the district court abused its discretion in dismissing her case under FRCP 37(e)(2) because her conduct was not willful or prejudicial to Riot.
The Ninth Circuit disagreed with the employee, noting that “a district court need only find that the Rule 37(e) prerequisites are met, the spoliating party acted with the intent required under Rule 37(e)(2), and lesser sanctions are insufficient to address the loss of the ESI.” The Court explained that because “intent can rarely be shown directly, a district court may consider circumstantial evidence in determining whether a party acted with the intent required for Rule 37(e)(2) sanctions,” including timing of destruction, affirmative measures taken to delete evidence, and selective preservation.
The Ninth Circuit’s upholding of the district court’s dismissal of the employee’s case sends a strong message to litigants -- that deleting relevant evidence such as text messages could result in sanctions or dismissal. Plaintiffs who take affirmative steps to deprive defendants of relevant evidence could be in for a costly, and terminating, outcome.
