In the case Jones v. Riot Hospitality Group, the plaintiff, Alyssa Jones sued her former employer, a bar, Riot Hospitality Group, and its owner individually alleging discrimination and other employment tort claims.  Plaintiff was found to have intentionally deleted relevant text messages with co-workers from 2017 and 2018, and coordinated with her witnesses to delete additional messages from 2019 and 2020. These actions were taken with the intent to deprive the defendant, Riot Hospitality Group, of information critical to the litigation. The district court ruled that the deletions could not be remedied through further discovery and consequently dismissed the case under Federal Rule Civil Procedure 37(e)(2), which addresses the loss of electronically stored information (ESI) due to a party’s failure to take reasonable steps to preserve it when litigation is anticipated. The court’s decision was based on Jones’ intent to obstruct the litigation, a key factor under the Rule, and determined that lesser sanctions would not be sufficient.

1. Missing text messages.

    During discovery, Riot obtained text messages between Jones, her friends, and co-workers between October 2015 and October 2018.  However, Riot found instances where plaintiff abruptly stopped texting with people she had been communicating with on almost a daily basis.  Riot subpoenaed Jones’ third-party imaging vendor, and the vendor’s response showed that text messages between Jones and co-workers had been deleted from Jones’ phone.  In addition, during depositions of two co-workers, they both admitted that they had exchanged text messages with Jones about the case since October 2018.  After Jones failed to comply with a court order producing those messages, the court ordered that a third-party forensic search specialist review the phones of Jones and the three prospective witnesses.  Jones and two of the witnesses produced their phones to the search specialist.  The third witness claimed to have damaged her phone and that it was lost (of course).  The court excluded this third witness’ testimony. 

    2. Expert determination that plaintiff and witnesses coordinated deletion of text messages.

    After finally receiving all of the text messages extracted from Jones’ and the witnesses’ phones, the forensic search expert submitted a report to the court that after reviewing the messages between the phones, that “an orchestrated effort to delete and/or hide evidence subject to the Court’s order has occurred.”  In 2022, the district trial court dismissed the case with prejudice, relying on the holding that plaintiff and her witness deletion of the text messages was intended to deprive Riot from using this evidence in the litigation.

    3. Dismissal under Federal Rule 37(e)(2)

    Rule 37(e) applies when electronically stored information (ESI) “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.”  If the court finds the loss harmful to the other party, it “may order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). However, if the court finds that a party “acted with the intent to deprive another party of the information’s use in the litigation,” dismissal is authorized. Fed. R. Civ. P. 37(e)(2).

    Rule 37(e) provides a framework for addressing ESI issues in litigation. Employers can use this rule strategically by emphasizing their efforts to preserve relevant information and by challenging claims where the opposing party fails to do the same.

    4. The court found plaintiff intentionally destroyed text messages.

    The district court found substantial circumstantial evidence indicating that Jones intentionally destroyed a significant number of text messages and collaborated with others in doing so, which was upheld by the Ninth Circuit Court of Appeals. Jones failed to provide a satisfactory explanation for why messages to other employees at the bar were selectively deleted during 2017 and 2018. Additionally, a screenshot of a message sent to Jones, which was missing from her phone in its original form, demonstrated that she deleted at least one message relevant to the case. Furthermore, after being ordered to submit their phones for forensic imaging, Jones and a witness acquired new phones and did not produce the original ones for examination, thereby preventing the recovery of the deleted messages. The court concluded that Jones selectively deleted specific messages while preserving others from the same period, a finding supported by the evidence presented.

    5. Electronic stored information is critical in employment law cases.

    ESI has become critically important in employment law cases due to its comprehensive and revealing nature. In today’s digital age, a plaintiff’s ESI such as emails, text messages, digital documents, and even social media posts can shed light on plaintiff’s allegations in litigation.  Just as Jones did in this case, co-workers will likely text about their work environment, and these real time communications are key in discovering the facts of the case. It provides a time-stamped, verifiable record of communications and transactions that can prove intent, show patterns of behavior, or contradict statements made during litigation. Given its potential impact, the ability to accurately collect and analyze ESI is essential for establishing the facts and in employment disputes.