Last week, in Jones vs. Riot Hospitality Group LLC, the Ninth Circuit Court of Appeals affirmed the dismissal of a plaintiff’s employment discrimination suit because the plaintiff was found to have destroyed evidence.
During the litigation in the trial court, the employer became concerned that the plaintiff had destroyed text messages between herself and other witnesses. So, employer convinced the trial court to order the parties to jointly retain a forensic expert to review plaintiff’s phone and the phones of three other witnesses. Following the expert’s review of the witnesses’ phones that were surrendered, the expert concluded that the plaintiff had “orchestrated” an “effort to delete and/or hide evidence.”
As a result of plaintiff’s wrongful actions, the employer moved for terminating sanctions. The trial court granted the employer’s request and dismissed the lawsuit in favor of the employer. The trial court also sanctioned the plaintiff and her lawyer $69,576 for willfully violating the court’s prior order regarding the surrender of plaintiff’s phone.
The Ninth Circuit Court of Appeals upheld the trial court’s judgment, finding that the plaintiff “intentionally destroyed a significant number of text messages and collaborated with others to do so” in violation of Federal Rule of Civil Procedure 37(e)(2), which requires the preservation of emails and other electronic data in anticipation of trial. According to the Ninth Circuit, Federal Rule of Civil Procedure 37(e)(2) required the plaintiff to preserve all of her text messages once she knew she was going to sue her employer.
The bottom line – you can’t hide or delete evidence during litigation, or you will pay a heavy price.
You can read the full opinion in Jones v. Riot Hospital Group LLC here.
