Text messages destroyed during litigation

Lawsuits have become document-crazy, as the merits of a dispute are often buried by discovery (pretrial exchange of evidence) wars. One would expect that to be the case in technical litigation between mega corporations, where the document trails are long and complicated. But as shown below, every case can become a disputed document case, and in some circumstances, failure to take that seriously can result in dismissal—a sanction courts maintain in their litigation management tool box.

Here’s a tip: Don’t destroy documents

Former waitress Alyssa Jones sued her employer, bar owner-operator Ryan Hibbert, and his company Riot Hospitality Group in federal district court in 2017, alleging violations of Title VII of the Civil Rights Act of 1964 and common law tort (wrongful act) claims. During discovery, Riot obtained text messages exchanged among Jones, her friends, and coworkers between December 2015 and October 2018. It identified instances where she appeared to have abruptly stopped communicating with people she had been messaging almost daily. It sought those documents to determine what she was telling her friends and coworkers about her treatment at work.

In response to a subpoena, Jones’ message vendor produced a spreadsheet showing messages between Jones and her coworkers had been deleted from her mobile phone. In subsequent depositions, two coworkers, both of whom Jones had identified as prospective trial witnesses, testified they had exchanged text messages with her about the case since October 2018.