December 9, 2024 • 16 mins
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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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Kelly Twigger (00:13):
Welcome to the Case of the Week podcast, where
each week, we break down arecent decision in electronic
discovery case law and talkabout the practical impact for
you and your clients and keepyou up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:34):
I'm Kelly Twigger, the CEO andfounder of eDiscovery Assistant
and the principal at ESIAttorneys, with more than 25
years of experience navigatingthe evolving landscape of
litigation and eDiscovery.
I'm a practicing attorney,author, speaker, entrepreneur
and now podcaster who works as adiscovery strategist and expert
for clients at ESI Attorneysand to provide that knowledge to
(00:55):
all legal professionals throughour e-discovery assistant
platform.
In each episode, we'll tackle anew decision in e-discovery
case law and how it shapes bothyour litigation strategy and
planning for risk mitigation.
If you're ready for blunt,actionable insights that keep
you ahead of the curve, andmaybe a few laughs along the way
, this is your go-to podcast.
Subscribe or follow now tostart embracing the episode of
(01:32):
our case of the week seriesbrought to you by eDiscovery
Assistant.
This week's decision raises yetanother issue on the failure to
preserve text messages and theresulting sanctions this time
from the Ninth Circuit Court ofAppeals.
All right, let's dive into thisweek's decision from the Ninth
Circuit Court of Appeals.
This is the second federalappellate decision we've seen in
the last 12 months onspoliation sanctions for failure
(01:55):
to preserve text messages.
This week's decision comes tous from the Jones v Riot
Hospital Group LLC case.
This is a decision dated March5, 2024, and the opinion is
written by United States CircuitJudge Andrew Hurwitz for the
panel.
This is the latest of sevendecisions on this matter that
are in our database, so it hasbeen a hotly contested discovery
(02:18):
issue.
This particular decision hasthe following issues attached to
it Mobile device, form ofproduction, text messages, bad
faith, dismissal, spoliation,sanctions, forensic examination,
search terms, proportionality,privacy and failure to preserve.
It also, very briefly, toucheson special master and
third-party subpoena.
(02:39):
All those issue tags are notapplied, all right.
So what are the facts that werehere before on this appeal?
Well, we're before the NinthCircuit on appeal of the
dismissal of the case by thedistrict court finding that the
plaintiff intentionallyspoliated text messages.
The plaintiff here, alyssa Jones, was a waitress in a bar in
(03:00):
Scottsdale, arizona.
She sued the bar owner and hiscompany, riot Hospitality Group,
alleging violations of TitleVII and various tort claims.
During discovery, jonesproduced text messages between
herself and her friends, as wellas work colleagues between
December 2015 and October 2018.
Upon receiving those textmessages in discovery, defense
counsel noted gaps in regularpatterns of communication.
(03:23):
Where Jones had beencommunicating with friends and
colleagues daily, she wouldsuddenly stop Now, in response
to a subpoena.
Following up on the review ofthat data, jones' third-party
imaging vendor produced aspreadsheet showing that
messages between Jones and herco-workers had been deleted from
Jones' mobile phone.
Then, in depositions, two ofthe co-workers, both of whom
(03:47):
Jones had identified asprospective trial witnesses,
testified that they hadexchanged messages with Jones
about the case since October2018.
Jones then failed to comply withthe district court's order to
produce those messages, and thedistrict court ordered the
parties to jointly retain athird-party forensic search
specialist to review the phonesof Jones and three prospective
(04:08):
witnesses.
The district court allowed Riotto subpoena the three witnesses
to produce their most recentcommunications regarding
plaintiffs' claims and orderedJones to provide her phone to
the agreed-upon forensicspecialist.
The expert was to extractmessages containing stipulated
search terms and send them toJones's counsel, who would then
send all discoverable messagesto Riot and produce a privilege
(04:30):
log of those that were notproduced.
So third party agreed uponexpert reviews text messages,
gathers them, sends them toplaintiff's counsel.
Plaintiff's counsel is thensupposed to send them to defense
counsel after reviewing themfor privilege.
But Jones and two of thewitnesses ultimately delivered
the phones to the expert aftermuch hoo-ha and the expert
(04:51):
extracted messages and sent themto counsel.
But counsel failed to forwardthem to riot, despite multiple
district court orders that he doso and several deadline
extensions.
The district court finallyordered the expert to send all
the non-privileged messagesdirectly to Riott and later
assessed almost $70,000 in feesand costs against Jones and her
(05:12):
counsel for failure to complywith the court's orders.
After finally receiving the textmessages, riott moved for
terminating sanctions underFederal Rule of Civil Procedure
37E2, submitting an expertreport that identified quote an
orchestrated effort to deleteand or hide evidence subject to
the court's order.
Close quote the district courtdismissed the case with
prejudice under Federal RulesCivil Procedure 37E2, finding
(05:35):
that Jones deleted text messagesand cooperated in the deletion
of messages by her witnessesintending to deprive Riot of
their use in litigation.
And plaintiff then appealed,arguing that she did not violate
Rule 37E and that thespoliation report from the
expert should have been excluded.
Okay, so what's the court'sanalysis here?
Well, the court begins with thestandard of review on appeal,
(05:58):
which is the high bar of abuseof discretion by the district
court, and that standardrequires the Ninth Circuit to
determine whether or not thedistrict court made any clear
errors in the facts underlyingthe ruling.
Appeal of the admission of theexpert report is based on the
abuse of discretion standard aswell.
Now, the district court foundthat Jones intentionally
spoliated relevant text messagewith her co-workers from 2017
(06:22):
and 2018 and coordinated withher witnesses to delete messages
from 2019 and 2020.
The appellate court found thatthe district court drew
reasonable inferences from thecircumstances and then found
that Jones did so with theintent to deprive Riot of using
the messages in this suit.
So that was a ruling by theappellate court, not the
(06:44):
district court.
Apologies for that confusion.
The district court also foundthat the deleted messages could
not be restored or replacedthrough additional discovery and
warranted dismissal On appeal.
Then Jones did not contest thatshe had a duty to preserve that
they were deleted or that thetext messages could be restored
or replaced, only that herconduct was not willful or
(07:06):
prejudicial to riot.
So we're strictly talking aboutintent on appeal that Joan's
conduct here was not willful,where she clearly engaged in a
pattern of not only deletingmessages from her own phone but
coordinating the deletion ofmessages from the same time from
those of her friends.
(07:26):
I have to wonder what the valueis of making this argument on
appeal.
The Ninth Circuit disagreed withthe plaintiff's argument and
citing to the 11th Circuit inthe Skanks go versus bagel heads
case that we covered on episode103 on the case of the week, as
well as the committee notes torule 37, the court found that
intent is most quote naturallyunderstood as involving the
(07:50):
willful destruction of evidencewith the purpose of avoiding its
discovery by an adverse party.
Close quote that's evidencethat we clearly have here
willful intent.
The panel also agreed that adistrict court may consider
circumstantial evidence indetermining whether a party
acted with the intent requiredfor Rule 37E2 sanctions,
including the timing ofdestruction, affirmative steps
(08:10):
taken to delete evidence andselective preservation.
The court rejected plaintiff'sargument that the expert could
not confirm that every deletionof a text message was
intentional and found that therewas circumstantial evidence
that Jones quote intentionallydestroyed a significant number
of text messages andcollaborated with others to do
so.
Close quote.
So, essentially, jones isarguing hey, you can't prove
(08:32):
that I intentionally deletedthese text messages, only that
they're gone.
And what the appellate court issaying is the district court
has the right to look at a setof circumstantial facts, and
those here supported thedistrict court's inference that
the deletions were intentional.
Other facts that supported thedistrict court's findings
according to the circuit court,jones could not explain why
(08:55):
messages to other employees atthe bar were selectively deleted
in 2017 and 2018.
With respect to the 2019 and2020 messages, the court pointed
out that quote while much ofthe content of the deleted
messages is unknowable.
Close quote a screenshot of amessage sent by a witness to
Jones but missing from Jones'sphone in its original form quote
(09:15):
shows that plaintiff deleted atleast one message that had a
direct bearing on her case.
Close quote Jones and one ofthe witnesses obtained new
phones shortly after they wereordered to hand their devices
over for imaging.
Neither Jones nor the witnessesproduced the earlier phones for
imaging, effectively preventingdiscovery of messages deleted
from those phones.
(09:35):
Now Jones also argued that herproduction of thousands of other
text messages negated theintent 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 shouldnegate the prejudice here.
The court rejected thatargument as well, finding that
production of some evidence doesnot excuse destruction of other
(09:57):
relevant evidence and that thereport from plaintiff's own
vendors suggests that shedeleted texts from the same time
periods covered by herproductions, meaning that
plaintiff engaged in a hugepattern of producing information
knowing that she had destroyedinformation from those same
relevant time periods.
Now the court here on appealmakes an interesting point that
(10:21):
Rule 37E2 does not mentionprejudice as a prerequisite to
sanctions, including dismissal.
According to the court, theadvisory committee notes explain
that a finding of prejudice wasnot included as a requirement
because, quote the finding ofintent required by Rule 37E2 can
support not only an inferencethat the lost information was
(10:42):
unfavorable to the party thatintentionally destroyed it, but
also an inference that theopposing party was prejudiced by
the loss of information thatwould have favored its position.
Now that's an interesting notefrom the court here, because
we've seen an awful lot ofanalysis as to prejudice on
sanctions motions under Rule37E2.
So we're going to have tocompare and contrast the ruling
(11:04):
here in Riot to some of theother decisions that we've seen
previously.
Now the Ninth Circuit found thatthe district court did rely on
that inference as to prejudicehere and that that was
acceptable.
The court also rejectedplaintiffs' arguments that less
drastic sanctions could havebeen imposed to cure the
prejudice, finding that thedistrict court expressly
considered less drasticsanctions and concluded that
(11:26):
none were likely to be effective.
The Ninth Circuit stated thatquote considering the nature of
the spoliated ESI and Jones andNathanson's repeated violations
of court orders, even aftermonetary sanctions had been
imposed, the district court'sconclusion was not an abuse of
discretion.
Close quote Nathanson wasJones' counsel.
Jones also argued that thedistrict court's order requiring
(11:49):
her and others to turn overtheir phones were improperly
issued.
The Ninth Circuit rejected thatargument, citing to the case
management order and to Arizonarules.
The court also rejectedchallenge to the orders based on
privacy issues, noting thatwhile there is a strong privacy
issue in the contents of mobilephones, that those privacy
issues are either addressed by aprotective order or on
(12:10):
proportionality grounds underthe federal rules.
Here the district court grantedthe only protective order that
the plaintiff sought on privacygrounds and that the text
messages were clearlyproportional to the needs of the
case.
Court also found that the factsof this case fit squarely within
the decision in Lewis v ArcherDaniels Midland Company, in
which the district court notedthat courts have allowed neutral
(12:33):
experts to examine electronicdevices quote when the moving
party has sufficientlydemonstrated need and inability
to obtain relevant informationby more conventional means, and
measures adequate to protect theprivacy or commercial concerns
of the party who owns the deviceare imposed.
Close quote.
So in essence, the court sayshere look, we gave you every
(12:55):
opportunity to turn theinformation over yourselves, but
you've obviated it in multipleways, so we're going to order a
third-party, neutral.
Finally, the court alsorejected any abuse of discretion
as to the trial court'sawarding of costs to the
defendant on the motion forsanctions.
We didn't cover it specificallyhere, but the court also did
allow the admission of theexpert reports that was the
(13:16):
basis of finding the intentionaldestruction of the text
messages.
Okay, so what are our takeawaysfrom this decision?
Well, what's really importanthere is looking at what the
defendant did for the underlyingbasis of this motion for
sanctions.
And the reason that defendantwas able to make this motion for
sanctions and get the casedismissed was by paying very
(13:36):
close attention to and comparingthe discovery of text messages
that they received.
Note that the whole issue arosehere because the defendant
identified gaps in the timing oftext messages sent that were
consistent between theplaintiffs and the other
witnesses, and you need to makesure that you've got tools that
can allow you to do thisanalysis and spend the time
(13:57):
early in the case to see whatthe data tells you.
It's a fundamental principle ofe-discovery that to do it
effectively you have to get intothe data, and that's what the
defendants did here that allowedthem to make this motion.
Next, be prepared to askquestions about the data
practices of your witnesses atdepositions after you have
(14:17):
reviewed the data.
Here, the witnesses testifiedthat they exchanged messages
with the plaintiff during a timewhen those messages were
missing.
When you know your data, youcan use it, in the patterns that
you see, to help you build acase, whether it's on the merits
for a motion to compel or forsanctions, like in this case.
If you get in the data and useit to instruct you how to talk
(14:40):
to the witnesses, how to followup, what else should be there
Now?
This decision is another in aseries finding intent and
dismissing cases for failure topreserve under Rule 37E2.
It's become more important thanever to ensure that you are
recognizing the need to preservedata from mobile devices and to
work with your clients early onto get that done.
There are multiple tools at allcost points to allow you to do
(15:03):
that effectively.
Plaintiff's conduct here wasclearly intentional, but we are
also seeing case law where apattern of behavior evidencing a
failure to preserve can alsolead to dismissal, even without
that intent.
Courts are finding that badfaith in failing to preserve
equals intent.
Now you can read through thosedecisions in our 2023 case law
report and see the pattern thatis emerging.
(15:25):
That pattern suggests that textmessages and other
communication tools used onmobile devices are growing in
importance exponentially.
Don't wait until the case isupon you that requires
preservation.
Instead, actively seek outsolutions that will allow you to
preserve data from devicesproactively to preclude
potential sanctions.
That's our case of the week forthis week.
(15:46):
Thanks so much for joining me.
We'll be back again next weekwith another decision from our
eDiscovery Assistant database.
As always, if you havesuggestions for a case to be
covered, please drop me a line,and if you'd like to receive our
Case of the Week delivered toyour inbox via our weekly
newsletter, you can sign up atediscoveryassistantcom backslash
blog.
Thanks for joining me on thecase of the week podcast.
(16:11):
Tune in next episode as Idiscuss a new decision in the
discovery case law and identifythe issues you need to be paying
attention to and how they canhelp you do better discovery for
your clients and leverage thepower of esi.
Be sure to subscribe and leavea review to help others discover
the show and be kept in theknow on all things electronic
discovery.
I'm'm Kelly Twigger.
See you next time.
Welcome to the Case of the Week podcast, where
each week, we break down arecent decision in electronic
discovery case law and talkabout the practical impact for
you and your clients and keepyou up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:34):
I'm Kelly Twigger, the CEO andfounder of eDiscovery Assistant
and the principal at ESIAttorneys, with more than 25
years of experience navigatingthe evolving landscape of
litigation and eDiscovery.
I'm a practicing attorney,author, speaker, entrepreneur
and now podcaster who works as adiscovery strategist and expert
for clients at ESI Attorneysand to provide that knowledge to
(00:55):
all legal professionals throughour e-discovery assistant
platform.
In each episode, we'll tackle anew decision in e-discovery
case law and how it shapes bothyour litigation strategy and
planning for risk mitigation.
If you're ready for blunt,actionable insights that keep
you ahead of the curve, andmaybe a few laughs along the way
, this is your go-to podcast.
Subscribe or follow now tostart embracing the episode of
(01:32):
our case of the week seriesbrought to you by eDiscovery
Assistant.
This week's decision raises yetanother issue on the failure to
preserve text messages and theresulting sanctions this time
from the Ninth Circuit Court ofAppeals.
All right, let's dive into thisweek's decision from the Ninth
Circuit Court of Appeals.
This is the second federalappellate decision we've seen in
the last 12 months onspoliation sanctions for failure
(01:55):
to preserve text messages.
This week's decision comes tous from the Jones v Riot
Hospital Group LLC case.
This is a decision dated March5, 2024, and the opinion is
written by United States CircuitJudge Andrew Hurwitz for the
panel.
This is the latest of sevendecisions on this matter that
are in our database, so it hasbeen a hotly contested discovery
(02:18):
issue.
This particular decision hasthe following issues attached to
it Mobile device, form ofproduction, text messages, bad
faith, dismissal, spoliation,sanctions, forensic examination,
search terms, proportionality,privacy and failure to preserve.
It also, very briefly, toucheson special master and
third-party subpoena.
(02:39):
All those issue tags are notapplied, all right.
So what are the facts that werehere before on this appeal?
Well, we're before the NinthCircuit on appeal of the
dismissal of the case by thedistrict court finding that the
plaintiff intentionallyspoliated text messages.
The plaintiff here, alyssa Jones, was a waitress in a bar in
(03:00):
Scottsdale, arizona.
She sued the bar owner and hiscompany, riot Hospitality Group,
alleging violations of TitleVII and various tort claims.
During discovery, jonesproduced text messages between
herself and her friends, as wellas work colleagues between
December 2015 and October 2018.
Upon receiving those textmessages in discovery, defense
counsel noted gaps in regularpatterns of communication.
(03:23):
Where Jones had beencommunicating with friends and
colleagues daily, she wouldsuddenly stop Now, in response
to a subpoena.
Following up on the review ofthat data, jones' third-party
imaging vendor produced aspreadsheet showing that
messages between Jones and herco-workers had been deleted from
Jones' mobile phone.
Then, in depositions, two ofthe co-workers, both of whom
(03:47):
Jones had identified asprospective trial witnesses,
testified that they hadexchanged messages with Jones
about the case since October2018.
Jones then failed to comply withthe district court's order to
produce those messages, and thedistrict court ordered the
parties to jointly retain athird-party forensic search
specialist to review the phonesof Jones and three prospective
(04:08):
witnesses.
The district court allowed Riotto subpoena the three witnesses
to produce their most recentcommunications regarding
plaintiffs' claims and orderedJones to provide her phone to
the agreed-upon forensicspecialist.
The expert was to extractmessages containing stipulated
search terms and send them toJones's counsel, who would then
send all discoverable messagesto Riot and produce a privilege
(04:30):
log of those that were notproduced.
So third party agreed uponexpert reviews text messages,
gathers them, sends them toplaintiff's counsel.
Plaintiff's counsel is thensupposed to send them to defense
counsel after reviewing themfor privilege.
But Jones and two of thewitnesses ultimately delivered
the phones to the expert aftermuch hoo-ha and the expert
(04:51):
extracted messages and sent themto counsel.
But counsel failed to forwardthem to riot, despite multiple
district court orders that he doso and several deadline
extensions.
The district court finallyordered the expert to send all
the non-privileged messagesdirectly to Riott and later
assessed almost $70,000 in feesand costs against Jones and her
(05:12):
counsel for failure to complywith the court's orders.
After finally receiving the textmessages, riott moved for
terminating sanctions underFederal Rule of Civil Procedure
37E2, submitting an expertreport that identified quote an
orchestrated effort to deleteand or hide evidence subject to
the court's order.
Close quote the district courtdismissed the case with
prejudice under Federal RulesCivil Procedure 37E2, finding
(05:35):
that Jones deleted text messagesand cooperated in the deletion
of messages by her witnessesintending to deprive Riot of
their use in litigation.
And plaintiff then appealed,arguing that she did not violate
Rule 37E and that thespoliation report from the
expert should have been excluded.
Okay, so what's the court'sanalysis here?
Well, the court begins with thestandard of review on appeal,
(05:58):
which is the high bar of abuseof discretion by the district
court, and that standardrequires the Ninth Circuit to
determine whether or not thedistrict court made any clear
errors in the facts underlyingthe ruling.
Appeal of the admission of theexpert report is based on the
abuse of discretion standard aswell.
Now, the district court foundthat Jones intentionally
spoliated relevant text messagewith her co-workers from 2017
(06:22):
and 2018 and coordinated withher witnesses to delete messages
from 2019 and 2020.
The appellate court found thatthe district court drew
reasonable inferences from thecircumstances and then found
that Jones did so with theintent to deprive Riot of using
the messages in this suit.
So that was a ruling by theappellate court, not the
(06:44):
district court.
Apologies for that confusion.
The district court also foundthat the deleted messages could
not be restored or replacedthrough additional discovery and
warranted dismissal On appeal.
Then Jones did not contest thatshe had a duty to preserve that
they were deleted or that thetext messages could be restored
or replaced, only that herconduct was not willful or
(07:06):
prejudicial to riot.
So we're strictly talking aboutintent on appeal that Joan's
conduct here was not willful,where she clearly engaged in a
pattern of not only deletingmessages from her own phone but
coordinating the deletion ofmessages from the same time from
those of her friends.
(07:26):
I have to wonder what the valueis of making this argument on
appeal.
The Ninth Circuit disagreed withthe plaintiff's argument and
citing to the 11th Circuit inthe Skanks go versus bagel heads
case that we covered on episode103 on the case of the week, as
well as the committee notes torule 37, the court found that
intent is most quote naturallyunderstood as involving the
(07:50):
willful destruction of evidencewith the purpose of avoiding its
discovery by an adverse party.
Close quote that's evidencethat we clearly have here
willful intent.
The panel also agreed that adistrict court may consider
circumstantial evidence indetermining whether a party
acted with the intent requiredfor Rule 37E2 sanctions,
including the timing ofdestruction, affirmative steps
(08:10):
taken to delete evidence andselective preservation.
The court rejected plaintiff'sargument that the expert could
not confirm that every deletionof a text message was
intentional and found that therewas circumstantial evidence
that Jones quote intentionallydestroyed a significant number
of text messages andcollaborated with others to do
so.
Close quote.
So, essentially, jones isarguing hey, you can't prove
(08:32):
that I intentionally deletedthese text messages, only that
they're gone.
And what the appellate court issaying is the district court
has the right to look at a setof circumstantial facts, and
those here supported thedistrict court's inference that
the deletions were intentional.
Other facts that supported thedistrict court's findings
according to the circuit court,jones could not explain why
(08:55):
messages to other employees atthe bar were selectively deleted
in 2017 and 2018.
With respect to the 2019 and2020 messages, the court pointed
out that quote while much ofthe content of the deleted
messages is unknowable.
Close quote a screenshot of amessage sent by a witness to
Jones but missing from Jones'sphone in its original form quote
(09:15):
shows that plaintiff deleted atleast one message that had a
direct bearing on her case.
Close quote Jones and one ofthe witnesses obtained new
phones shortly after they wereordered to hand their devices
over for imaging.
Neither Jones nor the witnessesproduced the earlier phones for
imaging, effectively preventingdiscovery of messages deleted
from those phones.
(09:35):
Now Jones also argued that herproduction of thousands of other
text messages negated theintent 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 shouldnegate the prejudice here.
The court rejected thatargument as well, finding that
production of some evidence doesnot excuse destruction of other
(09:57):
relevant evidence and that thereport from plaintiff's own
vendors suggests that shedeleted texts from the same time
periods covered by herproductions, meaning that
plaintiff engaged in a hugepattern of producing information
knowing that she had destroyedinformation from those same
relevant time periods.
Now the court here on appealmakes an interesting point that
(10:21):
Rule 37E2 does not mentionprejudice as a prerequisite to
sanctions, including dismissal.
According to the court, theadvisory committee notes explain
that a finding of prejudice wasnot included as a requirement
because, quote the finding ofintent required by Rule 37E2 can
support not only an inferencethat the lost information was
(10:42):
unfavorable to the party thatintentionally destroyed it, but
also an inference that theopposing party was prejudiced by
the loss of information thatwould have favored its position.
Now that's an interesting notefrom the court here, because
we've seen an awful lot ofanalysis as to prejudice on
sanctions motions under Rule37E2.
So we're going to have tocompare and contrast the ruling
(11:04):
here in Riot to some of theother decisions that we've seen
previously.
Now the Ninth Circuit found thatthe district court did rely on
that inference as to prejudicehere and that that was
acceptable.
The court also rejectedplaintiffs' arguments that less
drastic sanctions could havebeen imposed to cure the
prejudice, finding that thedistrict court expressly
considered less drasticsanctions and concluded that
(11:26):
none were likely to be effective.
The Ninth Circuit stated thatquote considering the nature of
the spoliated ESI and Jones andNathanson's repeated violations
of court orders, even aftermonetary sanctions had been
imposed, the district court'sconclusion was not an abuse of
discretion.
Close quote Nathanson wasJones' counsel.
Jones also argued that thedistrict court's order requiring
(11:49):
her and others to turn overtheir phones were improperly
issued.
The Ninth Circuit rejected thatargument, citing to the case
management order and to Arizonarules.
The court also rejectedchallenge to the orders based on
privacy issues, noting thatwhile there is a strong privacy
issue in the contents of mobilephones, that those privacy
issues are either addressed by aprotective order or on
(12:10):
proportionality grounds underthe federal rules.
Here the district court grantedthe only protective order that
the plaintiff sought on privacygrounds and that the text
messages were clearlyproportional to the needs of the
case.
Court also found that the factsof this case fit squarely within
the decision in Lewis v ArcherDaniels Midland Company, in
which the district court notedthat courts have allowed neutral
(12:33):
experts to examine electronicdevices quote when the moving
party has sufficientlydemonstrated need and inability
to obtain relevant informationby more conventional means, and
measures adequate to protect theprivacy or commercial concerns
of the party who owns the deviceare imposed.
Close quote.
So in essence, the court sayshere look, we gave you every
(12:55):
opportunity to turn theinformation over yourselves, but
you've obviated it in multipleways, so we're going to order a
third-party, neutral.
Finally, the court alsorejected any abuse of discretion
as to the trial court'sawarding of costs to the
defendant on the motion forsanctions.
We didn't cover it specificallyhere, but the court also did
allow the admission of theexpert reports that was the
(13:16):
basis of finding the intentionaldestruction of the text
messages.
Okay, so what are our takeawaysfrom this decision?
Well, what's really importanthere is looking at what the
defendant did for the underlyingbasis of this motion for
sanctions.
And the reason that defendantwas able to make this motion for
sanctions and get the casedismissed was by paying very
(13:36):
close attention to and comparingthe discovery of text messages
that they received.
Note that the whole issue arosehere because the defendant
identified gaps in the timing oftext messages sent that were
consistent between theplaintiffs and the other
witnesses, and you need to makesure that you've got tools that
can allow you to do thisanalysis and spend the time
(13:57):
early in the case to see whatthe data tells you.
It's a fundamental principle ofe-discovery that to do it
effectively you have to get intothe data, and that's what the
defendants did here that allowedthem to make this motion.
Next, be prepared to askquestions about the data
practices of your witnesses atdepositions after you have
(14:17):
reviewed the data.
Here, the witnesses testifiedthat they exchanged messages
with the plaintiff during a timewhen those messages were
missing.
When you know your data, youcan use it, in the patterns that
you see, to help you build acase, whether it's on the merits
for a motion to compel or forsanctions, like in this case.
If you get in the data and useit to instruct you how to talk
(14:40):
to the witnesses, how to followup, what else should be there
Now?
This decision is another in aseries finding intent and
dismissing cases for failure topreserve under Rule 37E2.
It's become more important thanever to ensure that you are
recognizing the need to preservedata from mobile devices and to
work with your clients early onto get that done.
There are multiple tools at allcost points to allow you to do
(15:03):
that effectively.
Plaintiff's conduct here wasclearly intentional, but we are
also seeing case law where apattern of behavior evidencing a
failure to preserve can alsolead to dismissal, even without
that intent.
Courts are finding that badfaith in failing to preserve
equals intent.
Now you can read through thosedecisions in our 2023 case law
report and see the pattern thatis emerging.
(15:25):
That pattern suggests that textmessages and other
communication tools used onmobile devices are growing in
importance exponentially.
Don't wait until the case isupon you that requires
preservation.
Instead, actively seek outsolutions that will allow you to
preserve data from devicesproactively to preclude
potential sanctions.
That's our case of the week forthis week.
(15:46):
Thanks so much for joining me.
We'll be back again next weekwith another decision from our
eDiscovery Assistant database.
As always, if you havesuggestions for a case to be
covered, please drop me a line,and if you'd like to receive our
Case of the Week delivered toyour inbox via our weekly
newsletter, you can sign up atediscoveryassistantcom backslash
blog.
Thanks for joining me on thecase of the week podcast.
(16:11):
Tune in next episode as Idiscuss a new decision in the
discovery case law and identifythe issues you need to be paying
attention to and how they canhelp you do better discovery for
your clients and leverage thepower of esi.
Be sure to subscribe and leavea review to help others discover
the show and be kept in theknow on all things electronic
discovery.
I'm'm Kelly Twigger.
See you next time.
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