There is no shortage of duty to preserve cases. Issuing a litigation hold is a universal constant in any lawsuit. Yet, what if individuals under a duty to preserve use messaging apps that automatically delete messages?
The answer is a Court finding parties acted with the intent to deprive the opposing party of electronically stored information.
In These Ponies are Miserable v. City of L.A., we are off to the races for motion practice over the deletion of Signal messages. The case involved concerned citizens protesting the treatment of ponies at Griffith Park in Los Angeles. The protests took place from September 2021 to December 2022. These Ponies are Miserable v. City of L.A., No. 2:23-cv-08330-HDV-SK, 2025 U.S. Dist. LEXIS 230042 (C.D. Cal. Nov. 7, 2025)
The Plaintiffs communicated with each other using a Signal group chat. These Ponies, at *2-4. All but two of the Plaintiffs communicated over the Signal group chat. These Ponies, at *5. The messages were set to automatically delete after one week. Id.
Mount Up for Analysis with FRCP 37
Spoliation of ESI cases are governed under Rule 37 in Federal cases. The rule states in relevant part: “[i]f electronically stored information 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, the court:”
(1) on finding prejudice to another party, may order measures no greater than necessary to cure the prejudice; or
(2) on finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e).
A party has a duty to preserve evidence when it knows or should know that the ESI is relevant to reasonably anticipated litigation. A party with a duty to preserve ESI must take affirmative steps to preserve evidence. These Ponies, at *16. In the “old days” of eDiscovery was turning off auto-delete on data archiving systems. Today, that includes modern ESI like messaging apps.
The Court galloped to the finding that the Plaintiffs were knowingly deleting Signal messages after they had a duty to preserve. These Ponies, at *17. Moreover, the Plaintiffs were aware that the deleted Signal messages could not be recovered. Id. These facts were more than enough for the Court to trot to the conclusion that the threshold for spoliation had been met from the Plaintiffs’ actions. Id.
The question of whether a party acted with the intent to deprive depends on whether the ESI was willfully destroyed. This destruction must have been done with “the purpose of avoiding its discovery by an adverse party.” These Ponies, at *18, citing Jones v. Riot Hospitality Grp., 95 F.4th 730, 735 (9th Cir. 2024). Intent can be shown with circumstantial evidence of the timing of destruction. It can also be demonstrated by affirmative steps taken to delete evidence and through selective preservation. Id.
The Court found that there were affirmative steps to destroy evidence. These included changing the Signal chat settings to delete the messages. These Ponies, at *18-19. Additionally, there was evidence from email and text messages that potentially incriminating messages were sent on Signal. Id.
The Court stated the following on the Plaintiffs’ intent:
A finding of intent is appropriate even as to the other individual Plaintiffs in the Signal chat. Each of these Plaintiffs had an independent duty to preserve relevant evidence. Each of them knew that the messages in the Signal group chat were being deleted. Several admitted that they communicated via Signal for that reason, because they did not want the park rangers or “the government”—the opposing parties in this litigation—to access their chats.
These Ponies at *19-20.
Intent was also demonstrated by the fact that the existence of the Signal chat was discovered during a deposition. Moreover, many of the individual Plaintiffs did not bring their cell phones to their depositions. And for icing on the cake, Plaintiffs had refused to produce electronic communications until they were ordered to do so. The Court held that all of the “evasive behavior” contributed to finding that the Plaintiffs intentionally acted to avoid the discovery of the Signal messages. These Ponies at *21-22.
The question of prejudice to the Defendants was mixed. It was plausible that the Plaintiffs discussed many relevant topics on Signal chat. However, many of the Plaintiffs’ actions were captured on over 975 videos produced by the Plaintiffs alone. These Ponies at *23-24. There were also arrest records and eye witnesses accounts of the events. Id.
The Court refused to go with the extreme remedy of a default judgment for the Plaintiffs’ actions. However, the plaintiffs sought “psychological injuries,” that included compensatory damages, including for their “humiliation, mental anguish, [and] emotional distress.” These Ponies, at *24-25. The loss of the Signal chat messages were prejudicial to the Defendants on these claimed injuries, especially for impeachment if the Plaintiffs had not suffered emotional distress. Id. As such, the Plaintiffs were sanctioned with an adverse inference instruction and attorneys’ fees for the sanctions motion. These Ponies, at *25-26.
Bow Tie Thoughts
Parties avoiding the duty to preserve ESI with “disappearing” messaging apps are a giant concern. This occurs in cases ranging from First Amendment rights like this one to national security. There are cases where parties who choose to use Signal after they had a duty to preserve were found to have acted with the intent to deprive. See, FTC v. Noland, No. CV-20-00047-PHX-DWL, 2021 U.S. Dist. LEXIS 163918, at *2 (D. Ariz. Aug. 30, 2021).
In perfect world, litigants would identify all of their forms of communicating during the Rule 26(f) meet and confer. However, we don’t live in a perfect world. Parties propounding discovery requests are well served to ask adverse parties in a special interrogatory to identify the communications applications they have used. Another strategy if there is a suspicion a messaging app was used and not disclosed, is to propound requests for admissions that a party used a specific messaging app. If a responding party denied using a specific messaging app in a verified response, and they actually did use that app, there could be a lively deposition examination on what exactly happened.
As 2025 draws to a close, we are commemorating the 10 year anniversary of the 2015 Amendments to the Federal Rules of Civil Procedure. We have a rich body of case law that brought sanity to spoliation analysis. If you are interested in hearing more about the duty to preserve and modern ESI, I am moderating a webinar for Reveal on December 9 at 12:00 pm entitled Fireside Chat on Complying with the Duty to Preserve ESI. Hope you can join me for a discussion with my friend John J. Jablonski, Managing Partner at Gerber Ciano Kelly Brady LLP, on cases from this year.
Disclosure: I am an independent contractor for Reveal.