A recent decision illustrates the importance of ensuring data is properly preserved following the onset of litigation. Our team regularly prepares litigation hold policies and preservation plans to ensure data is defensibly preserved and maintained.

In Hunters Capital, LLC et al. v. City of Seattle, C20-0983 TSZ, 2023 WL 184208 (W.D. Wash. Jan. 13, 2023), Judge Thomas S. Zilly found that the City of Seattle’s “egregious” spoliation of thousands of text messages from key officials merited an adverse inference instruction in this decision from the U.S. District Court for the Western District of Washington.

The case was filed by plaintiffs, a group of property and business owners from Seattle’s Capitol Hill neighborhood, in June 2020. The plaintiffs alleged that the City’s “unprecedented decision” to abandon a portion of the neighborhood in light of ongoing protests subjected businesses and residents to property damage and public safety dangers. The complaint named a number of key city officials alleged to have been involved in the decision, and the plaintiffs sent the City a number of litigation holds and letters requesting the preservation of these employees’ communications. Despite the obligation to preserve relevant evidence, thousands of text messages from seven key officials – including Seattle’s mayor, police chief, and fire chief – were deleted during the time period of July 2020 through October 2020.

Judge Zilly found that an adverse inference instruction was merited based on several findings:

• The loss of the text messages was prejudicial to plaintiffs. Although the City argued that it produced thousands of the deleted text messages from other employees’ devices, there were no text messages directly between the seven officials at issue, meaning a substantial number of the deleted messages were unrecoverable.
• The seven officials “purged” thousands of relevant text messages from their phones after they were under a clear legal obligation to retain them, through a combination of factory resets, changes to retention settings, and manual deletions.
• The City did not take reasonable steps to preserve the lost messages. It failed to timely notify the officials of their obligation to preserve ESI, waiting over a month after the filing of the complaint to issue litigation holds, and it failed to follow its own protocols to maintain City text messages.
• The City “hid the ball” regarding the spoliated text messages – although it first became aware of the Mayor’s lost text messages in August 2020, it did not inform plaintiffs until March 2021. The other six officials deleted text messages or reset their phones during the interim period, leading to the loss of thousands of additional text messages in the period between when the City learned of the issue and when the plaintiffs were informed.

Although the court found the spoliation at issue was egregious, it rejected plaintiffs’ request for a default judgment as too severe, settling on an adverse inference instruction that the jury may presume the city officials’ text messages were unfavorable to the city. The court also ruled that plaintiffs were allowed to present evidence and argument about the deletion of the text messages, and awarded plaintiffs costs related to the spoliation argument.

Joe A. Tate, Jr., Member and Managing Director of CODISCOVR, focuses his practice on eDiscovery, information governance, and data management issues in the context of litigation and investigations. In his role, Joe is responsible for the day-to-day management of a team of attorneys and technologists that handle all phases of the eDiscovery lifecycle. Connect with Joe →

Nicole Gill, Counsel at CODISCOVR, concentrates her practice on electronic discovery in a variety of contexts, manages complex document review workflows, and routinely navigates data and privacy protection laws across many jurisdictions, both domestic and foreign. Nicole also implements quality control procedures to mitigate risk and counsels both clients and colleagues on issues related to eDiscovery, information governance and data management. Connect with Nicole →