In Pable v. Chicago Transit Auth., No. 19 CV 7868 (N.D. Ill. Aug. 7, 2024), Illinois District Judge Robert W. Gettleman adopted Magistrate Judge McShain’s recommendations, concluding there was intent to deprive for Signal messages by the plaintiff and that “dismissal is the appropriate sanction”. He also concluded that “sanctions against {plaintiff’s counsel} Duffy are appropriate” and adopted Judge McShain’s recommendations regarding the appropriate award of attorney’s fees and costs related to defendant’s motion to compel.

Case Discussion and Judge’s Ruling

In this case involving claims against the defendants, alleging wrongful termination under the National Transit Systems Security Act (NTSSA), the plaintiff was placed on administrative leave and eventually resigned after raising concerns about a security vulnerability in a transit software system. The Chicago Transit Authority (CTA) conducted an internal investigation, during which the plaintiff and his supervisor, Todd Haynes, communicated using the Signal messaging app. Pable claimed that the CTA forced him to resign as a pretext for an upcoming FMLA filing.

The CTA filed a motion for sanctions, arguing that the plaintiff failed to preserve three categories of relevant ESI:

Pre-November 2, 2018 Signal Messages

The plaintiff deleted all pre-November 2 messages exchanged with Haynes. The plaintiff initially claimed the deletion happened when Haynes deleted his Signal thread with plaintiff, causing plaintiff’s own messages with Haynes to disappear, but CTA obtained an affidavit from the Chief Operating Officer of Signal, stating that “Signal has never had a feature allowing a Signal user to unilaterally, manually, and permanently delete messages they received in a Signal message thread from the electronic devices of any or all other Signal users in the same message thread.”.

The plaintiff then offered a different explanation for the deletion of his messages based on Haynes’ message deletion, claiming that “Signal can be configured to take any number of actions when the Safety Number changes,” and his Signal application was “coded to delete any such potentially comprised conversations.”

Judge Gettleman stated, finding intent to deprive Signal messages: “the court concludes that the pre-November 2, 2018, messages are relevant ESI and should have been preserved… The court also concludes, by a preponderance of the evidence, that not only did plaintiff fail to take reasonable steps to preserve the pre-November 2 messages, but he intentionally destroyed them. The court independently determines that plaintiff’s explanations for the deletion of these messages are not credible. Significantly, as Judge McShain noted, plaintiff changed his story to explain why the messages were deleted. Plaintiff offered the second explanation (‘Safety Number’) only after Harder’s affidavit refuted the initial explanation. Plaintiff also failed to take the reasonable message of turning off the fifty-message cap on his Signal messages following his duty to preserve.”

Post-October 29, 2019 Signal Messages

Signal messages were also automatically deleted because the plaintiff had enabled the “disappearing messages” function on his Signal application, which allowed messages to be automatically erased after a set period of time (in this case, 24 hours after being read).

Judge Gettleman stated: “Similarly, the court concludes that plaintiff and Haynes’ post-October 2019 messages are relevant ESI that should have been preserved. Haynes testified that he and plaintiff discussed the ongoing litigation, including the documents produced and received during the discovery process. As Judge McShain concluded, these messages are relevant as potential impeachment evidence against Haynes. Moreover, Haynes testified that he and plaintiff discussed via Signal information relevant to CTA’s affirmative defense of unclean hands.”

Continuing, he stated: “However, the court agrees with plaintiff that the record does not contain enough evidence to suggest that plaintiff spoliated the second set messages (via the disappearing messages function) for the purposes of hiding adverse information. Plaintiff argues that he turned on the disappearing messages feature for the purposes of data hygiene and to maintain storage, and there is no specific evidence in the record to refute that statement.”

Plaintiff’s Personal Cell Phone

A forensic “image” of plaintiff’s phone, conducted under the direction of his attorney, Duffy contained only 0.2 GB of user-generated data. It lacked critical information, including: communications exchanged on third-party applications (including Signal), internet browsing/search histories, audios, photos and videos, and information from the phone’s SD card.

Duffy represented to CTA and the court that this first image was a “complete forensic image” of the phone. He assured opposing counsel that the image was “complete,” stating that it captured all of the data from the phone when it was imaged and that “nothing about the imaging process affected the ‘completeness’ of the image.”

However, after a court order compelling a second imaging, CTA’s retained vendor produced a second forensic image of plaintiff’s phone. This second image contained 25 GB of unique data, significantly more than the first image. The second image recovered 42 Signal messages between plaintiff and Haynes, exchanged between May 2019 and October 2019. These messages were not included in the first image and were highly relevant to the litigation.

Judge Gettleman stated: “the court concludes that plaintiff failed to preserve his cell phone with intent to deprive defendants of its contents. As discussed above, plaintiff was aware that CTA sought a complete image of his cell phone and had a motive at the time to hide information that might undermine his claim. After the first image, Duffy repeatedly misrepresented to CTA that plaintiff obtained a complete image of his cell phone, and repeatedly failed to correct his misrepresentation.”

So, Judge Gettleman stated: “the court adopts the first R&R’s recommendation that plaintiff’s complaint be dismissed with prejudice. Dismissal is the appropriate sanction in the instant case given the record demonstrating plaintiff and Duffy’s evasive tactics and dishonesty, and the court’s finding that plaintiff intended to deprive CTA of relevant ESI. A lesser sanction would not be sufficient to cure the prejudice that CTA has suffered due to the spoliation because it is ‘impossible to determine the full extent of the spoliation.’”

Additionally, Judge Gettleman imposed monetary sanctions:

• Plaintiff and his counsel, Duffy, were ordered to pay $75,175.42 in attorney’s fees and costs, split equally between them.
• Duffy was also personally sanctioned under 28 U.S.C. § 1927, and ordered to pay an additional $53,388.00 for “vexatiously and needlessly” multiplying the proceedings.
• Duffy was ordered to pay $21,367.00 in connection with the CTA’s motion to compel.

So, what do you think? Do you agree there was intent to deprive Signal messages by the plaintiff and that dismissal was an appropriate sanction? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.