In Armstrong v. Holmes, No. 3:22-cv-00375-ART-CSD (D. Nev. March 29, 2024), Nevada Magistrate Judge Craig S. Denney sanctioned defendant/counterclaimant Susan Holmes for intentional deletion of text messages, opting for an adverse inference instruction sanction over the default judgment sanction the plaintiff sought.

Case Discussion

In this case, the court issued an order granting the motion to compel insofar as defendant Susan Holmes was required to produce text messages and emails with her son, William Holmes, from August 2, 2022, to the present regarding Armstrong and/or the Trust and file a notice of such production.

With respect to the motion for spoliation sanctions, the court made a finding that Susan Holmes’ duty to preserve arose at least as of May 9, 2022, when she entered into the settlement agreement which contained the provisions regarding payments to be made as well as the non-disparagement provision and accompanying remedies for its breach.

The court deferred ruling on the spoliation motion with respect to text messages and/or emails regarding Armstrong or the Trust between Susan Holmes and her daughter, Jennifer Holmes, as well as her niece, Kerry Armstrong, to allow Susan Holmes an opportunity to determine if the messages could be restored or replaced through additional discovery. The court also ordered Susan Holmes to file a notice indicating whether text messages and emails between her and her son, William Holmes, had been produced for the time period of August 2, 2022, to the present.

Judge’s Ruling

Regarding William Holmes, Judge Denney stated, in denying the motion for sanctions: “The court is satisfied that text messages and/or emails to or from Williams Holmes to Susan Holmes from August 2, 2022 going forward regarding Armstrong and/or the Trust have been produced to counsel for Armstrong.” Regarding Kerry Armstrong, Judge Denney stated, in denying the motion for sanctions: “Kerry Armstrong states that in 2022, she received a text from Armstrong which included snide comments about Susan Holmes. That text message is included as an exhibit to her declaration… Given Kerry Armstrong’s statement that she did not receive any other text message from Armstrong or Holmes in 2022-2023, the motion for spoliation sanctions is denied with respect to messages with Kerry Armstrong.”

However, regarding messages between Susan Holmes and her daughter Jennifer Holmes, Judge Denney stated: “Susan and Jennifer Holmes both state that the fact that they live together reduced the need to send messages via text (or presumably email), but neither states that they never texted one another. The record demonstrates Susan Holmes was fairly prolific in texting other persons, including her son, and opposing counsel, and those messages contained many spiteful references to Armstrong. Therefore, the court finds it hard to believe that there were no messages between Susan and Jennifer about Armstrong.”

Continuing, Judge Denney stated: “Even more troubling is that it appears Susan Holmes continued to delete her text messages after she received the litigation preservation letter in this case. She states that she had a policy of deleting text messages after reading them, but she clearly should have ceased this policy after receiving the preservation letter. She also indicates she did not know that her iPhone had a setting that deleted messages after 30 days, but the preservation letter also should have put her and her counsel on notice to check her phone settings to make sure that relevant information was not being deleted… Even with that setting enabled, she admits that she still engaged in selective preservation of messages. She kept the messages that she thought were important to the case, but deleted the others. This is indicative of intent under Rule 37(e)(2).”

Concluding intentional deletion of text messages by Susan Holmes, Judge Denney stated: “In sum, Susan Holmes deleted text messages with her daughter, Jennifer Holmes, after May 8, 2022, when she entered into the settlement agreement concerning the Trust, and after she was served with a litigation preservation letter. Despite being aware that she was obligated to preserve any relevant messages, she failed to take reasonable steps to preserve the messages, and the messages are not recoverably by any reasonable alternative means. Therefore, sanctions are appropriate under Rule 37(e)(2).”

However, regarding the plaintiff’s request for default judgment against Susan Holmes, Judge Denney stated: “While Susan Holmes’ conduct in continuing to delete messages after being served with a litigation preservation letter is egregious, it has not so harmed Armstrong that he is unable to present his case.” So, he instead opted for an adverse inference instruction sanction against Susan Holmes for intentional deletion of text messages.

So, what do you think? Was an adverse inference instruction sanction sufficient for intentional deletion of text messages? Please share any comments you might have or if you’d like to know more about a particular topic.

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