The Importance of Warning the Client About Damaging or Destroying Electronically Stored Information (or “ESI”)

Introduction

A family law attorney must continue to be diligent about educating clients about the risks and consequences that flow from damaging or destroying potentially relevant electronic evidence.  Numerous cases have been published in the last decade about the dire consequences a client can suffer through the unauthorized use of the opposing party’s passwords and using spyware or key-logging apps to conduct electronic surveillance.

Recent ESI Case Law

A recent case about spoliation and destruction of ESI, within the context of a federal employment discrimination case, affirms and strengthens the trial court’s ability to impose discovery sanctions on both the misbehaving litigant and counsel without requiring a specific finding of prejudice to the opposing party. 

In Jones v. Riot Hospitality Group LLC, 95 F. 4th 730 (9^th Cir. 2024), a hospitality company’s former employee sued it for wrongful termination.  The trial court dismissed the wrongful termination case and assessed approximately $69,000 in attorneys’ fees against the employee and her counsel for engaging in discovery misconduct.  The appellate court affirmed, finding that the record supported both the trial court’s dismissal of the case and its imposition of monetary sanctions on both individuals.

During review of the electronically stored information in discovery, the integrity of the former employee’s text message threads to colleagues and friends was questioned.  The former employee had turned over hundreds of text messages in her discovery responses.  However, depositions of the former employee’s witnesses disclosed that they received text messages from her that were omitted from her discovery responses. 

The trial court ordered the former employee and her witnesses to turn over their cell phones for inspection.  She and one witness obtained new cell phones shortly after the trial court entered the order.  Neither of them produced their previous phones for imaging, effectively preventing discovery of any text messages that had been deleted from their cell phones (a potential spoilation issue).

An image vendor was retained.  Some of the former employee’s text messages were salvaged, and the vendor turned them over to her legal counsel.  However, her counsel ignored multiple court orders to produce the retrieved text messages to opposing counsel.  The trial court ultimately ordered the image vendor to produce the information directly to the former employer’s counsel.

A subsequently retained forensic expert reached the conclusion that the former employee intentionally deleted specific text messages from her text thread.  One of the factors supporting the expert’s conclusion was the inexplicable gaps in her text threads to colleagues that were inconsistent with witness deposition testimony.  The trial court concluded that the former employee had affirmatively selected certain text messages for deletion while preserving other text messages sent around the same time, a conclusion the appellate court found to be reasonable. 

In its ruling, the trial court did not make a specific finding that the deleted text messages prejudiced the employer’s decision.  The appellate court affirmed the trial court’s dismissal.  It found that the facts in the record satisfied Federal Rule 37(e) requirements.

The appellate court also found that the former employee’s deletion of the text messages was intentional.  It acknowledged that Rule 37(e) does not define the term “intent,” but reasoned that the term “is most naturally understood as involving the willful destruction of evidence with the purpose of avoiding its discovery by an adverse party[.]”

The appellate court held that a trial court may consider circumstantial evidence in determining whether a party acted with the intent required to impose Rule 37(e) sanctions.  In this case, it found that the timing of the information’s destruction, the former employee’s affirmative steps that she took to delete the information, and her selective preservation of other text messages were relevant factors in determining whether she had intentionally destroyed the electronically stored information (thus presenting a spoilation issue).

On appeal, the former employee argued that the imposition of the monetary sanctions was unjustified because the former employer was able to depose witnesses, review hundreds of text messages, present a motion for summary judgment and ultimately dismiss the case. 

The appellate court was not persuaded.  It held that the record had ample evidence to support the trial court's finding that the former employee’s destruction of the electronically stored information impaired the employer’s “ability to go to trial and threatened to interfere with the rightful decision of the case.”  Both the dismissal and the imposition of significant monetary sanctions were affirmed.

Lessons for the Family Law Attorney

The majority of state jurisdictions rely upon the federal courts’ construction of federal rules of evidence and discovery in construing comparable discovery and evidentiary state statutes.  Civil discovery law applies to family law cases in the majority of state jurisdictions.  Equity does not protect the party who has “dirty hands,” (e.g., the party who destroyed or allowed the destruction of potentially relevant ESI).

Recommendation: Communicate with your client in clear, unequivocal language that potentially relevant evidence, including ESI, cannot be destroyed or damaged, directly or indirectly, without significant consequences.  Include written documentation of your communications about the severe consequences that can flow from the spoliation of evidence, including destruction or damage to electronically stored information, as part of your initial information packet to new clients.  Verbal and written warnings can serve as protection from discovery sanctions, allegations of malpractice, and bar complaints.

To check out NBI’s full selection of family law courses, visit: NBI Family Law.

Donelle H. Ratheal is the senior attorney of Ratheal Family Law. From 1993 to 2011, she was the senior attorney at Ratheal & Associates. From 2011 to 2019, Donelle was the managing partner of Ratheal, Maggard & Fortune, PLLC. Donelle has accrued almost 30 years of trial and appellate experience. The majority of her practice centers around complex family law and probate issues, both trials and appeals. Client representation has included contested custody, relocation of children, valuation of family-owned businesses, prenuptial agreements, grandparent rights and custody, domestic and international enforcement of domestic relations orders, stepparent adoptions, guardianships, wills, and trusts. She has represented clients in numerous appellate matters, many resulting in published appellate judicial opinions that clarified or modified existing law.