American Federation of Government Employees, AFL-CIO v. Trump, No. 25-cv-03698-SI (N.D. Cal. Sept. 11, 2026), full opinion (PDF)
In a suit over the FEMA staffing cuts, the agency's acting head, herself a defendant, kept work-related Signal chats on her personal phone on a disappearing-message timer. She left the timer running through a litigation hold, then shortened it two days after a discovery order. A district judge in the Northern District of California concluded on September 11 that by turning the timer on she had deleted the messages herself. The court found that she deleted them with the intent to deprive the plaintiffs of their use.
Under Rule 37(e)(2) the court will presume that the lost messages would have been unfavorable to the government. The defendants also may not rely on what the court called hindsight testimony. Those are after-the-fact denials that there was a plan to substantially cut FEMA's staff, that DHS directed it, or that FEMA carried it out by indiscriminately separating its on-call response staff. The plaintiffs will recover their fees for uncovering and addressing the spoliation.
What happened
The plaintiffs contend that DHS unlawfully directed FEMA to cut its staff in half. In March 2026 the court issued a series of expedited discovery orders, the last of which reached Signal chats on senior decisionmakers' phones. Defense counsel refused to search personal phones. The acting head testified that she had used Signal on her personal phone to discuss agency business with DHS officials.
In November 2025, weeks before FEMA's staffing plan was due, she had opened a Signal chat with two DHS decisionmakers. She set it to delete after four weeks. On March 10, 2026, DHS reminded its employees to preserve messages sent on encrypted apps. On March 11, two days after a March 9 discovery order aimed at FEMA leadership, she photographed the messages she judged to be records worth keeping. She emailed the photographs to her work account, deleted the originals, and shortened the timer to one week. A DHS deputy chief of staff who sat in the same chat produced no Signal messages. On his last day of federal employment he reinstalled the app, which wiped his chats.
The court's analysis
The court rejected as circular the government's argument that relevance is beyond proof once the messages are gone. The chat's timing, its membership, and the few surviving messages were enough to establish relevance, the court concluded.
The court found that the acting head and the deputy chief of staff "actively took steps to delete those chats" in violation of agency policy, the Federal Records Act, and the litigation hold. Signal does not delete messages by default, the court noted. Photographing selected messages, the court reasoned, did not cure a loss the timer had already caused. The deputy chief of staff was never a named defendant. That was no excuse for the loss of his messages, the court stated. If the earlier orders left doubt about personal phones, it added, the defendants could have sought clarification.
On intent, the court distinguished the government's authorities as cases where ESI was lost because a party failed to stop an automatic deletion process. The chat's participants, the court wrote, "affirmatively chose to enable auto-delete settings on their work-related chats". The court weighed how closely the acting head's change to the timer followed the discovery order and the preservation reminder. Her continued use of the timer counted as evidence of intent as well, in the court's view. Two messages the defendants had produced from the chat were gone by a later court-ordered search, the court noted. Her silence about the chat at her first deposition weighed in too.
The court called the timing of the deputy chief of staff's wipe highly suspect but did not find intent on his part. The acting head's intent alone, the court concluded, supported the presumption. Prejudice, which the court separately found under Rule 37(e)(1), supported the other remedies.
Why it matters
A party whose custodians use disappearing messages should expect that a court may treat the timer as the custodian's own deletion. Counsel needs the timer turned off on every work chat once litigation is anticipated. A custodian who keeps the timer running after a hold hands the movant the timeline this court read as evidence of intent. A movant who cannot recover the messages can still prove relevance from the chat's creation date, its membership, and the surviving fragments.
A custodian's photographs of selected messages do not preserve the conversation. Collection should capture the whole chat with its metadata, leaving the relevance call to counsel.
The preservation duty follows the work communication, not the device. Counsel should confirm that every custodian kept work communications off personal phones before declining to search them. An order silent on personal devices calls for a request that the court clarify its reach. A departing employee's messages remain the party's responsibility, so counsel should obtain a preservation attestation before the employee's last day.
The full opinion is available as a PDF.
