Today’s case is not a drug or device case. It’s not even a products liability case. But it does deal with sanctions against a plaintiff and his counsel for intentional spoliation of text messages—conduct that could (and undoubtedly has) taken place in prescription medical product liability litigation. So, we’ve added Pable v. Chicago Transit Authority, 145 F.4th 712 (7th Cir. 2025), to our E-Discovery Cheat Sheet—and use it here to share our thoughts on the topic.
Pable involves claims that plaintiff was wrongfully terminated for being a whistleblower. Plaintiff admitted that he communicated with another employee about his actions using the encrypted text messaging app Signal. When those communications were requested in discovery, plaintiff claimed they had been deleted. The explanation for the deletion, however, evolved over time. First, plaintiff said that the messages were deleted from his phone when the other party deleted them from their phone. When Signal’s CEO provided an affidavit that that was not possible, plaintiff changed his story to say that he had specifically configured the Signal app on his phone to delete threads when deleted by other users, information he would have known from the outset. Further, at a later point in time, plaintiff activated the “disappearing messages” function that caused threads to automatically delete after 24 hours. While these actions largely made recovery of any Signal messages impossible, plaintiff did agree to a forensic imaging of his phone. This is where his attorney compounded the problem. Plaintiff’s counsel instructed the service doing the imaging to limit the data collection by parameters he set, but represented to defendants that the collection was a “complete” image of plaintiff’s phone. A second collection demonstrated that the first was substantially incomplete.
It goes without saying that when a plaintiff, who voluntarily brings a claim and thus places certain facts at issue, intentionally deletes communications that are central to the matter in dispute, they obstruct the very process they have invoked. That’s why the Federal Rules of Civil Procedure, particularly Rule 37(e), provide a framework for courts to address the loss of electronically stored information (ESI). Where the spoliating party acted with intent to deprive the opposing party of the evidence’s use in litigation, courts are authorized to impose harsh remedies, including adverse inference instructions, case-terminating sanctions, and monetary penalties. That’s because it is one thing for a party to negligently fail to preserve data. It is quite another for a plaintiff to use messaging applications designed to auto-delete communications—and worse, to do so after litigation becomes reasonably foreseeable. Pable, like other courts, rightly viewed such conduct as warranting the harshest of sanctions, and the Seventh Circuit agreed.
On appeal, where the district court’s decision is reviewed for an abuse of discretion, plaintiff tried to argue that his case should not have been dismissed because there was some “uncertainty” about how some of the messages got deleted. Id. at 720. However, the appellate court, like the district court, discredited the “uncertainty” as it was created by plaintiff’s explanation changing over time, including after being confronted with the Signal CEO’s affidavit. The court also found that because plaintiff had already started discussing his termination with counsel before he triggered their deletion, plaintiff was on notice about the need to preserve the messages and a reasonable factfinder could conclude his actions were intentional. Id.
The circuit court found that in deciding to dismiss the case, the district court’s decision fully considered the seriousness of the spoliation, the misrepresentations related to the spoliation, the importance of the spoliated evidence, and the harm inflicted by the spoliation. The district court also fully explained why a lesser sanction would not cure the prejudice. Id. at 722.
The monetary sanctions were awarded under a few different authorities. First, pursuant to Rule 37(e)(1), plaintiff and his counsel were ordered to pay reasonable fees and costs incurred by defendant in bringing the sanctions motion. On appeal, plaintiff argued 37(e)(1) does not authorize monetary sanctions. An issue of first impression in the Seventh Circuit, the court found that because 37(e)(1) provides that judges “may order measures no greater than necessary to cure the prejudice,” that includes monetary sanctions, “where necessary.” Id. at 723. Second, pursuant to Rule 37(a)(5), the court ordered counsel to pay costs associated with defendants’ motion to compel a second forensic imaging of plaintiff’s phone because plaintiff’s counsel’s opposition to the motion was “not substantially justified.” Counsel’s opposition argued that the second imaging was unlikely to yield any new information, but it in fact led to the production of nearly 25 additional GBs of data and information relevant to the lawsuit. Counsel also argued that the first collection had not been limited in a way to exclude relevant information, which was directly contradicted by the service who did the collection which provided testimony that they were directed to produce a limited image by plaintiff’s counsel. Id. at 724.
Finally, the court ordered counsel to pay sanctions under 28 U.S.C. §1927 for misconduct. Which is hardly surprising considering he misrepresented to defendants that the first image was a “complete forensic image” and his primary argument to the court was “his statements are misrepresentations only if one ‘literally’ interprets them.” Id. at 725-26. If he’s literally using “literally” literally, doesn’t that mean counsel’s argument is that if you read his statements in a real, factual, and non-exaggerated way—they are misrepresentations? This argument didn’t persuade the Seventh Circuit either. All sanctions, including dismissal, were upheld.
The connection between Pable and products liability litigation is not ethereal. Products cases turn on facts and increasingly, much of this critical context lives in a place more accessible than a warehouse or a lab—it lives in the plaintiff’s text messages. While expert reports and manufacturing records are still key, so too are real-time consumer behavior and communications, especially via smartphones and messaging apps. Plaintiffs’ text messages often reveal things like whether a product was used as intended or misused, complaints or discussions about the product both pre and post injury, admissions of alternative causes of injury, or even statements that contradict the timing or alleged severity of the injury.
Unfortunately, intentional deletion of this information is not isolated behavior, hence our cheat sheet. Fortunately, courts have repeatedly recognized that destruction of personal digital communications warrants harsh remedies, because the prejudice to the defense is acute. In these cases, the plaintiff holds the narrative. Once that narrative is scrubbed of unfavorable data, the defendant is left to fight a ghost. Evidence is not optional. When plaintiffs erase it, they should forfeit their claim. Dismissal is not a punishment—it is the legal consequence of choosing deception over disclosure.