When can using Signal and WhatsApp be a problem in discovery?
- Peter Schneider
- Aug 19
- 7 min read
Updated: Aug 19
I recently blogged about some folks openly discussing their lawsuit on the internet and how that came to the attention of the TCPA defendant who issued a subpoena to get the records.
The president's men don't discuss their war plans on internet forums or discord servers, they use signal and many others use a similar chat tool WhatsApp. One of the features of these apps is the ability to automatically vanish the messages so that unlike robocalls.cash internet forum, you don't get a five year history of conversations some mole can go screenshot and Allstate issue a subpoena for.
Be warned, however, that discussing any subject with anyone using vanishing messages might run afoul of discovery obligations in your lawsuits as a party to lawsuit Ohio ex rel. OHへ AG Dave Yost v. Jones, No. 2:22-cv-2700, 2025 U.S. Dist. LEXIS 152065 (S.D. Ohio Aug. 7, 2025) experienced. The state of Ohio Attorney General Dave Yost is taking defendants Roy Melvin Cox Jr and Julie Kathryn Bridge to task for billions of unwanted text messages sent through corporate entities.
In the litigation Mr. Cox has not been the model litigant Obtaining responsive discovery from Defendant Cox has been like pulling teeth . . . Plaintiff provided notice that Defendant Cox did not comply with the Court's order that he must produce all documents in his possession, custody, or control responsive to Plaintiff's discovery requests . . . Then Plaintiff filed a status report bringing further allegations of Defendant Cox destroying or altering discovery in his possession, custody, or control.
Rule 37(e) states that "if electronically stored information ["ESI"] 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 Court may take appropriate responsive measures. Fed. R. Civ. P. 37(e). If the Court finds "prejudice to another party from the loss of information, [it] may order measures no greater than necessary to cure the prejudice." Fed. R. Civ. P. 37(e)(1). Alternatively, if the Court finds that "the party acted with the intent to deprive another party of the information's use in the litigation," the Court can presume the information was unfavorable to the offending party, instruct the jury to presume the information was unfavorable to the party, or enter a default judgment. Fed. R. Civ. P. 37(e)(2). . . . because the Undersigned finds that Plaintiff has been prejudiced by Defendant Cox's spoliation of WhatsApp messages with Defendant Bridge, some sanctions are recommended.
One of Attorney General Yost's tasks was tying defendant Cox to the corporate entities that initiated the calls, and Mr. Cox was making that very difficult.
Cox maintained that he "had no responsive records . . . pertaining to his involvement with any of the acts alleged in the Complaint." (also stating Cox produced partial written responses and a handful of documents). And Cox had "never heard of" or had "no involvement with" several of the corporate Defendants in this case. ("I never had any documents, never signed any documents.")
One reason Mr. Yost pointed to as to why Mr. Cox didn't have records was he admitted to deleting them
Cox previously acknowledged he deleted WhatsApp messages with at least one co-Defendant . . . Specifically, a WhatsApp message log produced by another Defendant, Julie Bridge, showed Defendant Cox turned on an auto-delete messaging feature in June 2023 for his message thread with her . . . The notice of the setting change stated "Roy Cox turned on disappearing messages. New messages will disappear from this chat 7 days after they're sent, except when kept . . . Cox changed the auto-delete setting in his Skype conversation with Bridge to delete messages after 24 hours on March 3, 2025 . . . Any WhatsApp messages among Bridge and Cox sent between June 9, 2023, and February 13, 2025, appear to be, for the most part, lost to the ether . . . Plaintiff argues that it faces "significant prejudice" because of Cox's destruction of co-defendant communications and his failure to identify "all he knows" about them. And Plaintiff thinks sanctions are appropriate.
Attorney General Yost is entitled to certain information relevant to his case, and that information might have been in the vanished WhatsApp messages. Mr. Yost asked the court for jury instructions that would help cure the deleted chats. Plaintiff seeks the following rebuttable presumptions in its favor: "1) the communications Defendant Cox destroyed would have shown that Defendant Cox exercised control and de facto ownership over his corporate co-defendants; and 2) the communications Defendant Cox destroyed would show that Defendant Cox recruited, directed and/or controlled the actions of Defendants Livia Szuromi, Andrea Horvath, Julie Bridge, and June Batista."
What exactly was Mr Cox's duty to preserve?
Plaintiff must first demonstrate that the ESI in question should have been preserved, was lost because Cox failed to take reasonable steps to preserve it, and cannot be replaced or restored through additional discovery . . . Rule 37(e) applies where electronically stored information "should have been preserved in the anticipation or conduct of litigation." The Undersigned has no trouble finding that Defendant Cox's conversations with Defendant Bridge should have been preserved . . . when that party 'has notice that the evidence is relevant to litigation or . . . should have known that the evidence may be relevant to future litigation.'" . . . conversations between the co-defendants obviously fall under the umbrella of evidence that is relevant to litigation.
Once Mr. Cox had a duty to preserve evidence, the court held him responsible to turn off document destruction:
Adjusting a setting to delete ESI is clearly failing to take reasonable steps to preserve that same ESI . . . finding a plaintiff had a reasonable duty to preserve text messages when he "deleted every text message he sent and received since his preservation duty was triggered" in accordance with his years-long "personal practice") . . . Once the duty to preserve attaches, a party must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.")
But here is the reality, some but not all document destruction is actionable under FRCP Rule 37(e)(2).
To impose a rebuttable presumption that lost electronically stored information was unfavorable to the offending party, as Plaintiff requests, the Court must find that the Cox "acted with the intent to deprive another party of the information's use in the litigation." . . . "To find that a party acted with intent to deprive another of evidence, a court must find by clear and convincing proof that the party acted 'with the specific purpose of gaining an advantage in the present litigation.' . . what matters is the subjective intent behind the setting change—whether Cox turned on the auto-delete setting with specific purpose of gaining an advantage in this litigation . . . [T]he absence of any positive evidence of subjective intent to deprive Plaintiff means that relief under Rule 37(e)(2) is unavailable."). And, at any rate, Plaintiff has not sufficiently explained why Cox's spoliation, even if intentional, justifies the rather extreme rebuttable presumptions it requests.
And some but not all document destruction is actionable under FRCP Rule 37(e)(1).
Despite not meeting its burden to show intent under Rule 37(e)(2), the Undersigned finds that that Plaintiff has been prejudiced by the loss of the WhatsApp messages under Rule 37(e)(1). "Prejudice can be properly understood as a party's ability to obtain the proofs necessary for its case . . . which is another way of saying the loss of ESI could negatively impact a party's ability to make its case, or prejudice that party because of the loss of information." . . . "Establishing prejudice when ESI has been destroyed and the contents are unknown is challenging." . . . Ultimately, it is within the Court's discretion to determine how to assess prejudice on a case-by-case basis.
What did Mr. Yost get?
In considering the whole record, the Undersigned concludes the following recommended sanction is appropriate to cure the prejudice Plaintiff has suffered but is no greater than necessary. Plaintiff should be permitted to introduce evidence at trial of Defendant Roy Cox's failure to preserve his WhatsApp messages with Defendant Bridge. Plaintiff may argue for whatever inference it hopes the jury will draw. Defendant Cox should also be permitted to present evidence on the matter and argue that the jury should not draw any inference from his failure to retain the WhatsApp messages
Let's guess the positive and negative aspects of what would have happened if Mr. Hossfeld and Mr. Newman were in a group signal chat utilizing vanishing messages, and Allstate got wind of it and made the lost chats an issue.
Looking at this case, Allstate might be allowed to present evidence of their failure to preserve their messages and whatever inference it hopes the jury will draw. Which would be what? How would these conversations change the concrete facts of did Allstate not have permission to call, and called anyway? If Mr. Hossfeld and Mr. Newman had a flimsy case that largely depending on their credibility, it might help Allstate. But if Mr. Hossfeld and Mr. Newman had a case that really didn't depend on their testimony, it would probably have a minor impact.
On the flip side, the messages being truly gone [if telemarketers get a mole into your signal chat, vanishing messages are going to get screenshotted so once again not knowing who they were really talking to was the underlying problem for Mr. Hossfeld and Mr. Newman and Signal wasn't going to automatically fix that] would prevent them from getting severely beaten up in depositions, and Allstate's attorneys from being able to potentially cherry pick from thousands of messages to make Mr. Hossfeld and Mr. Newman look bad. It would have protected all the bystanders on the robocalls.cash internet forum who are not going to have their chats made public, and without years worth of fodder left hanging around, Allstate might not have bothered.
The bottom line is, using Signal and WhatApp's vanishing message features are not advisable in all circumstances, but they are communication tools to consider and they appear to be smarter options than internet forums and discord servers.
Are telemarketers bothering you in Washington or Oregon? I handle TCPA lawsuits in both states and may be able to help. If you're considering action against illegal robocalls or Do Not Call list violations, reach out for a legal consultation.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog belong to me (Peter Schneider) and do not count as legal advice. If you’re considering suing over illegal robocalls or Do Not Call violations, please contact me for a legal consultation.
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