Jones v. Riot Hospitality Group LLC

A former waitress sued a Scottsdale bar operator under Title VII. During discovery, gaps appeared in the text-message threads she produced: messages her co-workers' phones showed on parallel threads were missing from hers. After a third-party forensic examination conducted under a stipulated order, the district court found she had deleted messages and coordinated with witnesses to delete theirs. The question on appeal was whether dismissal — the terminal sanction — was authorized on that record.

Rule 37(e) applies when ESI that should have been preserved is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. Subsection (e)(1) permits curative measures upon a finding of prejudice; subsection (e)(2) authorizes dismissal upon the distinct finding that the party acted with the intent to deprive another party of the information's use in the litigation. Intent may be established by reasonable inference from circumstantial evidence.

The intent finding was built forensically. Riot obtained messages from the phones of Jones's co-workers, and an independent examiner compared thread-by-thread: messages present on the counterparties' devices were absent from hers, the deletions clustered after litigation began and after the court ordered production, and the same pattern repeated across her witnesses' phones. Drawing reasonable inferences from timing, selectivity, and coordination, the district court found intent to deprive — and the Ninth Circuit held that inference chain was sound.

Dismissal affirmed. The decision confirms in the Ninth Circuit that once intent to deprive is found under Rule 37(e)(2), the court need not separately find prejudice before imposing terminal sanctions — and that intent can rest entirely on circumstantial evidence of the kind forensic examination produces. A plaintiff's case ended not on its merits but on what her phone no longer contained.