Dismissal of a lawsuit is a rare sanction for a discovery violation, but it happened recently in a workplace discrimination lawsuit, due in large part to two probing depositions that called into question one party’s assertion that she had turned over all relevant text messages stored on her cell phone.
The case underlines a principle well-known to skilled litigators: a good deposition not only tilts the playing field in one party’s favor, it can also secure an early victory without the expense and litigation risk of a trial.
A recent example of how depositions can be used to uncover less-than-candid discovery responses is Jones v. Riot Hospitality Group LLC, No. 22-16465 (9th Cir., March 5, 2024). In Jones v. Riot Hospitality Group, the plaintiff, a waitress formerly employed by the defendant, Riot Hospitality Group, alleged workplace claims arising under Title VII of the Civil Rights Act, as well as related common law causes of action.
A critical piece of evidence was a group of text messages that the plaintiff had exchanged with coworkers – two of whom had been identified by Jones as prospective trial witnesses. During pretrial discovery, the plaintiff turned over to the employer numerous text messages between herself and her coworkers between December 2015 and October 2018. After October 2018, the text messaging activity among the group appeared to have abruptly stopped. No messages sent after October 2018 were shared with the employer during discovery.
A good deposition not only tilts the playing field in one party’s favor, but it can also secure an early victory without the expense and litigation risk of a trial.
The employer was not convinced that the messaging had, in fact, stopped after October 2018. It was able to demonstrate, via forensic evidence from a third-party tech vendor, that some messages between the plaintiff and her coworkers had been deleted from the plaintiff’s phone. Moreover, deposition testimony from the two coworkers (and prospective trial witnesses) revealed that they had exchanged text messages with the plaintiff after October 2018 – a time period when the plaintiff asserted that no text messaging among the group had occurred.
The employer moved for terminating sanctions under Rule 37 of the Federal Rules of Civil Procedure. Rule 37 authorizes federal district courts to dismiss a lawsuit or claim if electronically stored information is lost because a party failed to take reasonable steps to preserve it. Dismissal is an extreme and rarely imposed sanction – permissible only when the district court finds that the party that lost the information “acted with the intent to deprive another party of the information’s use in the litigation,” Fed. R. Civ. P. 37(e)(2).
The district court found – and the appellate court agreed – that the plaintiff had engaged in “an orchestrated effort to delete and/or hide evidence” that was subject to the court’s discovery order. The district court also found that the plaintiff had “deleted text messages” and “cooperated in the deletion of messages by her witnesses, intending to deprive Riot of their use in litigation.”
The defense team in Jones v. Riot Hospitality Group was able to win an early dismissal for the client – thus avoiding the expense of trial and the likely prejudicial impact of the plaintiff’s act of deleting critical electronic evidence – because they took the time to double-check the plaintiff’s electronic evidence by deposing the recipients of the plaintiff’s text messages. Through deposition testimony from the plaintiff’s two coworkers, the defendant was able to shine a spotlight on missing text messages in the plaintiff’s discovery response and call into question her assertion that she had turned over all relevant text messages in her possession.
The many ways that pretrial depositions can bolster a party’s litigation position are limited only by the creative litigator’s imagination. Depositions are often the best way for litigators to assess witness credibility, and to spot inconsistencies in witness testimony prior to trial. Depositions may be the only way to develop testimony that establishes – or refutes – pivotal elements of a cause of action such as intent, foreseeability, and compliance with the relevant standard of the case.
With depositions, a litigator can learn how an opposing party creates and stores electronic evidence, where electronic evidence can be found, when it was created, and whether any such evidence has been altered or deleted. Depositions can also be an all-too-tempting opportunity for opposing parties to misbehave in a manner that undermines their case. Finally, depositions can provide a necessary reality check for pretrial submissions of electronic evidence that purport to be all of the relevant evidence in the opposing party’s possession.
