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Federal E-Discovery: Ninth Circuit Affirms Dismissal Sanction for Text Message Spoliation

April 2, 2024

Litigation partners Chris Boehning and Dan Toal's latest Federal E-Discovery column, "Ninth Circuit Affirms Dismissal Sanction for Text Message Spoliation," appeared in the April 2 issue of the New York Law Journal. The authors discuss a recent decision by the Ninth Circuit that clarified and affirmed the use of Federal Rule of Civil Procedure 37(e) as the standard for imposing sanctions for the loss of electronically stored information (ESI). The decision, in an employment discrimination claim that was dismissed with prejudice after the plaintiff and her witnesses deleted relevant text messages and failed to comply with multiple court orders to produce them, provides valuable guidance on the elements and evidence of intent under Rule 37(e)(2), the relationship between Rule 37(e) and prior circuit precedent, and the discretion of courts to impose the harshest sanctions for egregious spoliation, the authors note. Deputy chair and counsel, e-discovery, Ross Gotler and e-discovery attorney Lidia Kekis assisted in the preparation of this article.

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