In Herzig v. Arkansas Foundation for Medical Care, Inc., No. 2:18-CV-02101 (W.D. Ark. July 3, 2019), the Arkansas District Judge found that Plaintiffs acted in bad faith by using and “manually configuring [the messaging app] Signal to delete text communications” and by failing to disclose those deleted messages to Defendant. However, the Court declined to impose sanctions given that Plaintiffs’ case would be dismissed on other grounds.
At issue in this case was Plaintiffs’ alleged unlawful termination due to age discrimination. During the discovery phase, the parties conferred and agreed that Defendant might request data from Plaintiffs’ cell phones and that Plaintiffs had undertaken reasonable steps to preserve all potentially discoverable ESI from alteration or destruction. Pursuant to a July 2018 request for production, Plaintiffs Herzig and Martin produced screenshots of text message conversations, including conversations between the two individuals. However, Plaintiffs did not produce any text messages that were more recent that August 20, 2018 despite a motion to compel.
Following the August production of text messages, Plaintiffs Herzig and Martin installed the mobile application Signal, which allows users to send and receive encrypted text messages accessible only to sender and recipient, and allows the users to change settings automatically to delete these messages after a short period of time. Plaintiffs set the application to delete their communications, and as a result, disclosed no additional text messages to Defendant, who was unaware of their continued communications until Plaintiff Herzig disclosed their Signal communications during his deposition. Consequently, Defendant filed a motion for dismissal or adverse inference on the basis of spoliation.
In ruling on the motion, the Judge stated that “[Plaintiffs] had numerous responsive communications with one another and with other employees [of Defendant] prior to responding to the requests for production on August 22, 2018 and producing only some of those responsive communications on September 4, 2018. They remained reluctant to produce additional communications, doing so only after Defendant’s motion to compel. Thereafter, [Plaintiffs] did not disclose that they had switched to using a communication application designed to disguise and destroy communications until discovery was nearly complete. Based on the content of [Plaintiffs’] earlier communications, which was responsive to the requests for production, and their reluctance to produce those communications, the Court infers that the content of their later communications using Signal were responsive to Defendant’s requests for production. Based on [Plaintiffs’] familiarity with information technology, their reluctance to produce responsive communications, the initial misleading response from Plaintiff Martin that he had no responsive communications, their knowledge that they must retain and produce discoverable evidence, and the necessity of manually configuring Signal to delete text communications, the Court believes that the decision to withhold and destroy those likely-responsive communications was intentional and done in bad faith.”
However, the Court also stated despite the “intentional, bad-faith spoliation of evidence” the Court “need not consider whether dismissal, an adverse inference, or some lesser sanction is the appropriate one, [] because in light of the motion for summary judgment, [Plaintiffs’] case can and will be dismissed on the merits.” The requested sanctions were accordingly denied as moot.