In the recent case of Jones v. Riot Hospitality Group, LLC, the Ninth Circuit Court of Appeals, terminated a lawsuit as a sanction due to the plaintiff’s deletion of text messages that may have been relevant to Plaintiff’s claims.

In Jones, the Plaintiff Jones, a former waitress at a Scottsdale, Arizona bar, sued the owner of the bar and his company (Riot) for violations of Title VII and common law tort claims. After two of Jones’ coworkers testified in their depositions that they had exchanged text messages with Jones about the case, the district court ordered Jones to produce the text messages. When Jones failed to produce the text messages, the district court ordered the parties to jointly retain a third‑party forensic search specialist to review Jones’ and the other witnesses’ phones.

The forensic search specialist extracted messages from Jones’ phone and forwarded them to Jones’ lawyer, who had been ordered to forward the extracted messages to Riot’s lawyer. Despite multiple district court orders and deadline extensions, Jones’ lawyer failed to forward the text messages to Riot’s lawyer. The district court then ordered Kuchta to send all non‑privileged messages directly to Riot and assessed $69,576 in fees and costs against Jones and her lawyer.

After receiving the text messages from Kuchta, Riot successfully moved for terminating sanctions pursuant to Fed. R. Civ. P. 37(e)(2) based on an expert report from Kuchta who concluded that “an orchestrated effort to delete and/or hide evidence subject to the Court’s order had occurred.” The Ninth Circuit affirmed the judgment.

The moral of this case is that litigants should not hide or delete potential evidence. If they do, there can be severe consequences.

If you are considering a lawsuit where communications you had may be relevant and you would rather not disclose them, disclose them to your attorney and discuss how would be best to proceed. Sometimes there are ways to shield the information or limit the opposition’s use of the information before the Court ever issues sanctions for non-disclosure.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.