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Plaintiff’s Case Dismissed Due To Overwhelming Evidence of Intentional Deletion of Text Messages

Posted on April 12th, 2017

Deleted text messagesIn Coyne v. Los Alamos National Security, LLC et. al., Case No. 15-0054 (D. N.M., Mar. 21, 2017), Plaintiff former employee sued Defendant former employer Los Alamos for wrongful termination. Plaintiff alleged that she was assaulted on the job by a coworker and had to take FMLA leave after the assault.  She also alleged that her employment was terminated because she reported the assault and took the leave. Defendants alleged that Plaintiff’s employment was terminated due to a Reduction in Force policy.

Discovery in the case was rocky, and sanctions were awarded in favor of Defendants on two occasions for Plaintiff’s failure to produce discovery and then failure to pay costs associated with the discovery motions.

Defendants then served Plaintiff with a request for a forensic inspection of her iPhone, stemming from Plaintiff’s earlier failure to preserve and produce requested text messages. Plaintiff had attempted to retrieve the texts from Verizon and from Apple before agreeing to the inspection. The court noted that there was no evidence that Plaintiff had deliberately erased the messages prior to the forensic inspection request. After the inspection was scheduled, the phone was sent to the forensic examiner, who determined that the phone had been erased and reset six hours prior to Plaintiff turning it over to her attorney for shipment to the expert. Plaintiff claimed to have no idea how it happened, but neither Verizon nor Apple could recover the text messages. Defendants moved for terminating sanctions.

The evidence showed that within minutes after being erased and reset, the phone connected to wifi at a restaurant across the street from Plaintiff’s residence, and then, 20 minutes later, a phone call to Plaintiff’s husband was manually dialed in since the Plaintiff’s “contacts” had been erased. Plaintiff then contended that even if the court did not believe her denial of erasing the phone, that there was insufficient evidence of the capability of the defense expert to have been able to retrieve the messages in the first instance, regardless of the erasure.

The court found the Plaintiff’s arguments unpersuasive and agreed with Defendants. The magistrate judge recommended that the district judge dismiss the case against Defendants with prejudice. The court held that Plaintiff had a duty not to erase her phone, and that the evidence was “overwhelming” that she deliberately deleted text messages and destroyed the ESI to prevent its discovery. Combined with Plaintiff’s actions throughout the case, the prejudice to Defendants was significant. Plaintiff’s destruction of ESI interfered with the judicial process, and her actions were willful. The court found that no other sanction was appropriate and recommended dismissal.

ILS – Plaintiff Electronic Discovery Experts

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