Spoliation of Text Messages and Mobile Data: Notable Court Decisions
3 Recent Rulings to Know
Courts in the U.S. are increasingly tackling cases where spoliation of mobile device data plays a central role.
Three notable ediscovery rulings that involved missing or deleted text messages came to our attention via Doug Austin, attorney and head of Ediscovery Today, who featured them in a survey of the most important case law of 2024.
Failing to preserve mobile data in litigation can lead to severe consequences for attorneys and their clients. When spoliation was found, the courts looked at whether a party deliberately prevented the other from using critical information (intentional spoliation), and whether the loss of evidence hurt the other party’s case (prejudice) to craft a fitting sanction.
Sanctions in these court decisions have ranged from denial of summary judgment and monetary penalities (Maziar v. City of Atlanta), to dismissal with prejudice (Jones v. Riot Hospitality Group) to an adverse inference instruction and permission to present evidence of spoliation (Armstrong v. Holmes). The rulings highlight how courts think about sanctions for spoliation of electronically stored information, or ESI, from mobile devices under Rule 37 of the Federal Rules of Civil Procedure, and offer insights into what is at stake in failing to preserve such evidence.
Why Mobile Data Matters in Ediscovery
The number of global mobile users is estimated to reach 7.49 billion this year. This explosion of smartphone and cell phone use – for both personal and professional reasons – presents unique ediscovery challenges for attorneys.
Preservation of the high volumes of diverse forms of mobile data is a crucial one. The way mobile data is stored continues to evolve and varies by manufacturer, device type, settings and other configurations. Bring your own device (BYOD) policies – which mix personal devices and data with business – further complicate preservation.
Legal professionals must ensure that litigation holds extend to devices used for work and that custodians do not delete or alter potentially relevant information.
Dive deeper into the challenges associated with collecting and processing text messages in the Handling Mobile Data in Ediscovery guide.
Court Considers Difference Between Negligence and Bad Faith
Courts may sanction parties for spoliation even when no intent to deprive the other side of information is found, as demonstrated in Maziar v. City of Atlanta, No. 1:21-cv-02172-SDG, 2024 BL 197561 (N.D. Ga. June 10, 2024). In this case, the court partially sustained and partially overruled a magistrate judge’s order denying spoliation sanctions in this retaliatory termination matter.
The district court found the City of Atlanta, the defendant, grossly negligent but not intentionally malicious on the question of spoliation of text message evidence. But even though the court found a lack of bad faith under Rule 37(e)(2), it determined that sanctions were warranted due to prejudice to the plaintiff under Rule 37(e)(1).
The court ordered denial of the defendant's pending motion for summary judgment and awarded attorney fees and costs for the plaintiff associated with prosecuting the sanctions motion.
City of Atlanta Deletes Relevant Texts After Litigation Hold Request
The plaintiff, Michelle Maziar, a former Director of Atlanta’s Office of Immigration Affairs, alleged that she was wrongfully terminated in retaliation for her complaints about pay disparity and the city’s handling of COVID-19 relief funds. She claimed that her employer destroyed text messages from her former supervisor that were relevant to the case. The City of Atlanta argued that Maziar was fired for unprofessional behavior during a meeting.
Maziar sought sanctions against the city for the destruction of evidence under Rule 37(e), arguing that lost text messages between herself and her supervisor that were relevant to her termination were crucial to her case.
Court Rejects Claims of Bad Faith While Finding Prejudice
The district court determined that the city's actions were "quite careless" and grossly negligent, but not in bad faith because it had made some effort to produce data and did not misrepresent any discovery protocol. The city also disclosed a text message that was arguably inculpatory, suggesting it was not intentionally hiding evidence.
“The issue under 37(e)2 was not whether the deletion was intentional but whether it was done with the intent to deprive the other side of that evidence, and the evidence on that was insufficient,” retired Judge Andrew Peck noted during the recent EDRM webinar, 2024’s Most Notable ediscovery Case Law Rulings. “It appeared that [the city] always deleted the phones of departing employees so you can’t get the bad faith out of that.”
But the district court did conclude that the city’s lost text messages impacted the fairness of the case. As a result, the court denied the defendant’s motion for summary judgment and awarded the plaintiff attorney fees related to prosecuting the sanctions motion.
The case highlights the distinction between negligence and bad faith in spoliation cases, and the potential for creative sanctions, such as denying summary judgment, even in the absence of bad faith findings.
Willful Destruction of Messages Leads to Dismissal
When are terminating sanctions for deleted text messages warranted? In Jones v. Riot Hosp. Grp. LLC, 95 F.4th 730 (9th Cir. 2024), the U.S. Court of Appeals for the Ninth Circuit illustrates how Rule 37(e)(2) of the Federal Rules of Civil Procedure can be applied to dismiss a case when a party intentionally destroys relevant evidence.
Plaintiff Found to Intentionally Destroy Relevant ESI
Alyssa Jones, a former waitress at a bar in Scottsdale, sued her former employer, Riot Hospitality Group, and its owner, Ryan Hibbert, for Title VII violations and other employment claims.
Finding that Jones had intentionally deleted text messages between herself and coworkers – and coordinated with witnesses to do the same to keep critical information from the defendant – the district court dismissed the case with prejudice.
Jones appealed, arguing among other things that the district court abused its discretion in finding that Riot was prejudiced by the destruction of the text messages and by dismissing the case.
The Circuit Court affirmed terminating sanctions under Rule 37(e)(2) and found no abuse of discretion in the district court’s award of attorneys’ fees and costs.
Court Says Lesser Sanctions Are Insufficient
In its March 2024 opinion, the Circuit Court disagreed with Jones, affirming the terminating sanctions.
“To dismiss a case under Rule 37(e)(2), 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 Circuit Court said.
As Doug Austin pointed out on Ediscovery Today, the court said that “there was ample circumstantial evidence that Jones intentionally destroyed a significant number of text messages and collaborated with others to do so” and that “a screenshot of a message sent by a witness to Jones but missing from Jones’ phone in its original form, ‘shows that Plaintiff deleted at least one message that had a direct bearing on her case.’”
The court also held that under Rule 37(e)(2), a finding of prejudice is not necessary to impose sanctions, including dismissal, if the court finds that a party acted with the intent to deprive another party of the information’s use in the litigation.
The Jones case serves as a reminder that – particularly when dealing with less sophisticated plaintiffs who may not understand the duty to preserve data or how easy it is to discover deleted evidence – can lead to terminating sanctions.
Learn more about key case law rulings involving mobile data in the Handling Mobile Data in Ediscovery guide.
Court Weighs Intent and Seriousness of Harm
In Armstrong v. Holmes, No. 3:22-cv-00375-ART-CSD, 2024 BL 107764 (D. Nev. Mar. 29, 2024), a Nevada district court sanctioned the defendant, Susan Helen Armstrong Holmes, after concluding that she had intentionally deleted text messages that were relevant to the case – including after receiving a preservation letter.
However, the court in this case stopped short of a dismissal, opting instead for an adverse inference instruction sanction.
Defendant Deletes Messages After Receipt of Litigation Preservation Notice
The case involved a dispute between David C. Armstrong and Susan Holmes, with Armstrong claiming that Holmes breached a settlement agreement that included a non-disparagement provision. The court found that Susan Holmes’ duty to preserve ESI started at least since the date she entered into a settlement agreement with David C. Armstrong.
Judge Opts for Adverse Inference Instruction
In this case, what was especially troubling to the court was the finding that Susan Holmes deleted text messages with her daughter, Jennifer, after entering into a settlement agreement and continuing even after receiving a litigation preservation letter.
“She states that she had a policy of deleting text messages after reading them, but she clearly should have ceased this policy after receiving the preservation letter,” the judge wrote. “She also indicates she did not know that her iPhone had a setting that deleted messages after 30 days, but the preservation letter also should have put her and her counsel on notice to check her phone settings to make sure that relevant information was not being deleted… Even with that setting enabled, she admits that she still engaged in selective preservation of messages. She kept the messages that she thought were important to the case, but deleted the others. This is indicative of intent under Rule 37(e)(2).”
These findings led the court to conclude that Susan Holmes intended to deprive Armstrong of the information they contained and that sanctions were appropriate. But because the court found that the harm was not so egregious as to warrant dismissal or default judgment, it ruled instead that Armstrong could present evidence to the jury about Holmes’ deletion of text messages and the jury could infer that the deleted information was unfavorable to Holmes.
“While Susan Holmes’ conduct in continuing to delete messages after being served with a litigation preservation letter is egregious, it has not so harmed Armstrong that he is unable to present his case," the judge wrote.
The case shows that even when intent is found, courts will not necessarily impose the most severe sanctions and will, instead, craft the sanction that's appropriate to the harm.
“The remedy should fit the wrong,” the court said, adding that terminating sanctions, such as dismissal or the entry of default, are “very severe.”
Know the Nuance Courts Apply in Spoliation Cases
The 2024 court decisions in Maziar, Jones, and Armstrong show that that the consequences for spoliation can vary widely, from adverse inference instructions to case dismissal.
Taking a nuanced approach to Rule 37 of the Federal Rules of Civil Procedure, the courts will consider the intent behind deleted or destroyed mobile data evidence, whether spoliation happened with bad faith, and whether a party was harmed by the spoliation, to craft the most suitable sanctions.
Stay ahead of the curve in addressing mobile data spoliation. Learn best practices and explore key case law in our Handling Mobile Data in Ediscovery guide.
