In Jones v. Riot Hospitality Group LLC, 95 F. 4th 730 (9th Cir. 2024), Alyssa Jones, a former waitress at a Scottsdale bar, sued her former employer, Riot Hospitality Group, in an Arizona district court alleging employment discrimination under Title VII, as well as common law tort claims. 

During discovery, Riot noted that daily text messages between Jones and her friends and co-workers “abruptly stopped.” However, at deposition, two of Jones’ coworkers confirmed they exchanged text messages with Jones after the messages purportedly stopped. Jones’ imaging vendor confirmed that text messages had been deleted from her mobile phone. When Jones failed to produce the deleted messages by court order, the court ordered Jones and Riot to jointly retain a “third-party forensic search specialist” to review Jones’ phone as well as the phones of three prospective witnesses. 

Jones and Riot stipulated to search terms resulting in extracted messages sent to Jones’ lawyer, however Jones’ lawyer failed to produce the messages to Riot despite multiple court orders. The court then ordered the search specialist to send non-privileged messages directly to Riot, assessing $69,576 in fees and costs against Jones and her lawyer. Riot then moved to terminate Jones’ discrimination action under Federal Rule of Civil Procedure 37(e)(2) based on the recovered text messages as well as the forensic specialist’s conclusion that “an orchestrated effort” by Jones “to delete and/or hide evidence subject to the Court’s order has occurred.” 

The appellate court affirmed dismissal of Jones’ action, finding the district court had not abused its discretion, “[d]rawing reasonable inferences from the circumstances,” and found none of Jones’ arguments persuasive. The appellate court did not find credible Jones’ argument that deletion of the text messages was unintentional given the circumstantial evidence to the contrary. Significantly, a finding of prejudice to Riot is not a prerequisite to dismissal under Rule 37(e)(2). The appellate court noted that less drastic sanctions under Rule 37 were considered and the district court “reasonably concluded that none would likely be effective.” 

This is one of multiple cases evidencing that intentional spoliation of evidence continues to occur some 20 years after the Zubulake opinions, which served as one of the first warnings to litigants of the potentially severe and costly consequences for deleting relevant electronic evidence. It is imperative that client and counsel effectively communicate to avoid spoliation of evidence – intentional or unintentional – and always actively and proactively respond to discovery requests and court orders.

For more information on the case, and expert commentary from Reed Smith partner David Cohen, check out the Exterro Case Law Alert here.