Courts Issue Sanctions for Failure to Preserve Text Messages

In an article on the ACEDS blog, Kelly Twigger explores a concerning trend: courts are imposing severe penalties, including case dismissal, for failure to preserve text messages and other data from mobile devices. Twigger focuses particularly on a recent ruling by the 9th Circuit in the case of Jones v. Riot Hospitality Group, LLC.

The plaintiff sued her employer for Title VII violations and various torts, offering text messages between herself, friends, and co-workers as evidence. The defendant saw gaps during the time frame in question in which no communications were offered, and deletions were confirmed.

The Court ordered the parties to hire a neutral forensic examiner to image the plaintiff’s and three witnesses’ phones, extract messages conforming to agreed-upon search terms, and send them to the plaintiff’s counsel for privilege review and subsequent production.

The plaintiff’s counsel threw up numerous delays, during which the plaintiff and a witness got new phones after being ordered to turn their phones over. Ultimately, the plaintiff and her counsel were ordered to pay almost $70,000 in fees and costs for “failure to comply with the Court’s orders.”

The lower court dismissed the case after finding that the plaintiff intentionally deleted relevant texts, and cooperated in the failure to preserve text messages by her witnesses. On appeal, the plaintiff didn’t contest the facts. Her only argument was that she didn’t intend to deprive the defendant of the messages.

The 9th Circuit cited “ample circumstantial evidence” supporting the District Court’s findings, which Twigger details. She lists some practice points this case underlines:

• Focus on data patterns and timing gaps in productions
• Use your analysis to question witnesses, armed with knowledge about mobile device data preservation protocols
• Remember, intentional spoliation often arises as the result of an “orchestrated effort,” i.e., the plaintiff coordinating deletions across devices
• And most importantly, treat mobile data with the same level of care as other ESI sources.