AUTHOR*
Anthony J. Oncidi
Jones v. Riot Hospitality Group LLC, 2024 WL 927669 (9th Cir. 2024)
Alyssa Jones, a former waitress at a bar in Scottsdale, Arizona, sued the bar's owner and his company, Riot Hospitality Group, alleging violations of Title VII and common law tort claims. After two coworkers testified in their depositions that they had exchanged text messages with Jones about the case, the district court ordered Jones to produce those messages. After she failed to do so, the district court ordered the parties to jointly retain a third party forensic search specialist, K.J. Kuchta, to review Jones' and the other witnesses' phones. Kuchta extracted messages from Jones' phone and forwarded them to Jones' lawyer, who had been ordered to forward the extracted messages to Riot's lawyer. Despite multiple district court orders and deadline extensions, Jones' lawyer failed to forward the text messages.
The district court then ordered Kuchta to send all nonprivileged messages directly to Riot, and assessed $69,576 in fees and costs against Jones and her lawyer. After receiving the text messages from Kuchta, Riot successfully moved for terminating sanctions pursuant to Federal Rule of Civil Procedure 37(e)(2) based on an expert report from Kuchta, who concluded that "an orchestrated effort to delete and/or hide evidence subject to the court's order had occurred."
The court also noted that Rule 37 applies when electronically stored information that should have been preserved "in the anticipation 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."
The Ninth Circuit affirmed the judgment.
Kader v. Southern Cal. Med. Ctr., Inc., 99 Cal. App. 5th 214 (2024)
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA)1 became effective on March 3, 2022. A statutory note states that it "shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act."
Omar Kader worked as the CFO and then the COO of the employer, where he signed an arbitration agreement on June 25, 2019 in which he agreed to arbitrate "employment disputes." Kader alleges he was subjected to multiple acts of sexual assault and harassment both before and after he signed the agreement, though he did not file a complaint with the California Department of Fair Employment and Housing (DFEH) until May 2022. (The DFEH was renamed the California Civil Rights Department in July 2022, just after the administrative complaint was filed in this case.)
The defendants moved to compel arbitration on the ground that the alleged conduct began before Kader signed the arbitration agreement and, therefore, the "dispute" between the parties arose before the Act took effect. However, the trial court denied the motion to compel arbitration, and the court of appeal in this case affirmed, noting: "There was no evidence that Kader asserted any right, claim, or demand prior to filing charges with the DFEH in May 2022."
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