Month: November 2024

Rule 37 Dismissal Affirmed by Ninth Circuit

Rule 37 Dismissal Affirmed by Ninth Circuit

In Jones v. Riot Hospitality Group, LLC 95 F.4th 730 (9th Cir 2024), Rule 37 caused the dismissal of an employment discrimination case. According to an expert report, the plaintiff deleted text messages with her coworkers from her phone. Plaintiff challenged the dismissal and challenged the admissibility of the report of the expert who examined her phone and concluded that text messages had been deleted.

Rule 37(e) applies when ESI “that should have been preserved in the anticipation 735*735 or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” If the district court finds the loss prejudicial, it “may order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). But, if the court finds that an offending plaintiff “acted with the intent to deprive another party of the information’s use in the litigation,” dismissal is authorized. Fed. R. Civ. P. 37(e)(2).

The district court found that Jones intentionally deleted relevant text messages with co-workers from 2017 and 2018 and coordinated with her witnesses to delete messages from 2019 and 2020. “Drawing reasonable inferences from the circumstances,” the court found that Jones did so with the intent to deprive Riot of use of the messages in this suit. Jones, 2022 WL 3682031 at *6; see also id. at *10. The court also found that the deleted messages could not “be restored or replaced through additional discovery.” Id. at *5; see also id. at *8-9. Applying the five-factor test for terminating sanctions articulated in Anheuser-Busch, 69 F.3d at 348, the court found dismissal warranted. Id. at *11-13.

…

Jones’ argument that the district court abused its discretion in not holding a Daubert hearing is also unconvincing. District courts are not always required to hold a Daubert hearing to discharge their reliability and relevance gatekeeping duties under Federal Rule of Evidence 702. See United States v. Jawara, 474 F.3d 565, 582-83 (9th Cir. 2007). Although Daubert sets out factors for district courts to consider when determining whether expert testimony is admissible under Rule 702, they are “illustrative,” and “the inquiry is flexible.” Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1232 (9th Cir. 2017) (cleaned up). And, “Rule 702 should be applied with a liberal thrust favoring admission.” Id. (cleaned up). The record makes plain that Kuchta had extensive technical experience in computer forensics, including independent research in the type of mobile phone spoliation analysis he conducted in this case. And his methodology— comparing the volume of messages sent and received between mobile phone pairs over time and looking for digital artifacts of deletions—is sound. Jones makes much of Kuchta’s acknowledgment that there is no industry standard for analyzing text message deletions but gives no plausible reason to doubt the reliability of his opinions.

The result was that the Ninth Circuit affirmed the dismissal of the case.

Comment: Clients need to understand that they will not be allowed to proceed with a lawsuit where text messages have been deleted. It simply won’t work. The case will be dismissed.

Case Dismissed for Deleting Text Messages

Case Dismissed for Deleting Text Messages

In Jones v. Riot Hospitality Group, LLC 95 F.4th 730 (9th Cir. 2024), the plaintiff’s case was dismissed for her actions in deleting text messages. The reasoning:

Jones contends that the district court erred in finding intent because Kuchta could not confirm that every deletion of a text message was intentional or quantify the intentional deletions. But there was ample circumstantial evidence that Jones intentionally destroyed a significant number of text messages and collaborated with others to do so. As the district court noted, Jones could not explain why messages to other employees at the bar were selectively deleted in 2017 and 2018. With respect to the 2019 and 2020 messages, the court pointed out that “while much of the content of the deleted messages is unknowable,” a screenshot of a 736*736 message sent by a witness to Jones but missing from Jones’ phone in its original form, “shows that Plaintiff deleted at least one message that had a direct bearing on her case.” Jones, 2022 WL 3682031 at *10. Moreover, Jones and one of the witnesses obtained new phones shortly after they were ordered to hand over their devices for imaging. Neither Jones nor the witnesses produced the earlier phones for imaging, effectively preventing discovery of messages deleted from those phones. The court’s conclusion “that [Jones] affirmatively selected certain text messages for deletion while otherwise preserving text messages sent around the same time” is supported by the record. Id.

Second Circuit Affirms Rule 37 Dismissal

Second Circuit Affirms Rule 37 Dismissal

This case, Park v. Kim, 91 F.4th 610 (2d Cir. 2024) was decided in January 2024. The district court had dismissed the case under Rules 37 and 41(b) for willful failure to comply with discovery orders. Worse still, counsel for Park used artificial intelligence to draft the appellate reply brief and cited a case that does not exist.

The reply brief cited only two court decisions. We were unable to locate the one cited as “Matter of Bourguignon v. Coordinated Behavioral Health Servs., Inc., 114 A.D.3d 947 (3d Dep’t 2014).” Appellant’s Reply Br. at 6. Accordingly, on November 20, 2023, we ordered Park to submit a copy of that decision to the Court by November 27, 2023. On November 29, 2023, Attorney Lee filed a Response with the Court explaining that she was “unable to furnish a copy of the decision.” Response to November 20, 2023, Order of the Court, at 1, Park v. Kim, No. 22-2057-cv (2d Cir. Nov. 29, 2023), ECF No. 172 (hereinafter, “Response”). Although Attorney Lee did not expressly indicate as much in her Response, the reason she could not provide a copy of the case is that it does not exist — and indeed, Attorney Lee refers to the case at one point as “this non-existent case.” Id. at 2.

Attorney Lee’s Response states:

I encountered difficulties in locating a relevant case to establish a minimum wage for an injured worker lacking prior year income records for compensation determination…. Believing that applying the minimum wage to in injured worker in such circumstances under workers’ compensation law was uncontroversial, I invested considerable time searching for a case to support this position but was unsuccessful.

…

Consequently, I utilized the ChatGPT service, to which I am a subscribed and paying member, for assistance in case identification. ChatGPT was previously provided reliable information, such as locating sources for finding an antic furniture key. The case mentioned above was suggested by ChatGPT, I wish to clarify that I did not cite any specific reasoning or decision from this case.

Id. at 1-2 (sic).

All counsel that appear before this Court are bound to exercise professional judgment and responsibility, and to comply with the Federal Rules of Civil Procedure. Among other obligations, Rule 11 provides that by presenting a submission to the court, an attorney “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances… the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2); see also N.Y. R. Pro. Conduct 3.3(a) (McKinney 2023) (“A lawyer shall not knowingly: (1) make a false statement of … law to a tribunal.”). “Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, [and] legally tenable.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). “Under Rule 11, a court may sanction an 615*615attorney for, among other things, misrepresenting facts or making frivolous legal arguments.” Muhammad v. Walmart Stores E., L.P., 732 F.3d 104, 108 (2d Cir. 2013) (per curiam).

At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely. Indeed, we can think of no other way to ensure that the arguments made based on those authorities are “warranted by existing law,” Fed. R. Civ. P. 11(b)(2), or otherwise “legally tenable.” Cooter & Gell, 496 U.S. at 393, 110 S.Ct. 2447. As a District Judge of this Circuit recently held when presented with non-existent precedent generated by ChatGPT: “A fake opinion is not `existing law’ and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law. An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.” Mata v. Avianca, Inc., No. 22CV01461(PKC), 678 F.Supp.3d 443, 460-61 (S.D.N.Y. June 22, 2023).

Attorney Lee states that “it is important to recognize that ChatGPT represents a significant technological advancement,” and argues that “[i]t would be prudent for the court to advise legal professionals to exercise caution when utilizing this new technology.” Response at 2. Indeed, several courts have recently proposed or enacted local rules or orders specifically addressing the use of artificial intelligence tools before the court.[3] But such a rule is not necessary to inform a licensed attorney, who is a member of the bar of this Court, that she must ensure that her submissions to the Court are accurate.

Attorney Lee’s submission of a brief relying on non-existent authority reveals that she failed to determine that the argument she made was “legally tenable.” Cooter & Gell, 496 U.S. at 393, 110 S.Ct. 2447. The brief presents a false statement of law to this Court, and it appears that Attorney Lee made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented. We 616*616 therefore REFER Attorney Lee to the Court’s Grievance Panel pursuant to Local Rule 46.2 for further investigation, and for consideration of a referral to the Committee on Admissions and Grievances. See 2d Cir. R. 46.2.