Thinking about Bringing a Lawsuit? Don’t Delete Anything!


Spoliation is defined as “the action of ruining or destroying something.” In employment litigation, spoliation of evidence, such as text messages between the suing employee and their coworkers, can destroy an employee’s case. The Ninth Circuit Court of Appeals in Jones v. Riot Hospitality Group, LLC, 95 F.4th 730, 2024 WL 927669 (9th Cir. 2024) recently affirmed a judgment of case terminating sanctions against an employee where she destroyed such messages. The employee, a former waitress at a bar, sued her former employer for Title VII violations and other common law tort claims. During depositions, the employer discovered that the employee had texted her coworkers, but never produced those text messages. The court ordered the employee to produce the text messages, but she still did not. Thus, the court ordered that the parties jointly retain a third-party forensic search specialty to review the employee’s phone and the phones of three prospective witnesses. The employer used the report from the forensic search specialist to support its argument that the employee and her counsel had engaged in a concerted effort to destroy the text message, arguing that the employer was forever prejudiced by the deletion of messages. The court agreed, issuing terminating sanction after already sanctioning the employee and her counsel nearly $70,000.00. The employee and her counsel appealed the decision, and the Ninth Circuit Court of Appeals upheld that decision.

The bottom line is, do not destroy anything that might be considered related to your dispute, whether it is good or bad. Once you start thinking about litigation, it is prudent to go a step further and make sure all data is backed up and documents stored in a safe place or handed over to your counsel. Destroying evidence, even inadvertently, can destroy your case.

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