Dix v. IAC Warren, LLC, No. 24-11904, E.D. Mich. (Aug. 31, 2026), full opinion (PDF)
A plaintiff in a discrimination case testified that he routinely deletes text messages. Two weeks later the court ordered his phone surrendered for forensic imaging. The court found that he kept deleting afterward. When it ordered a second imaging at his own expense, he produced the phone but paid nothing. On August 31 Judge Judith E. Levy dismissed his case under Rule 37(b)(2)(A), resting on his refusal to follow that order, his spoliation of evidence, and his untruthful discovery responses. She declined to reach the Rule 37(e)(2)(C) analysis the defendant had also briefed.
What happened
The suit was filed in July 2024 over race discrimination and retaliation. At his deposition in August 2025 the plaintiff was asked about text messages he had sent to a witness. He answered: "I normally delete texts, so yes, I have deleted text messages". The parties took the resulting preservation dispute to the court, which on September 2 ordered the phone surrendered for imaging that same day.
That imaging recovered 1,129 deleted records, including a message to a witness sent weeks earlier. In January 2026 three witnesses described messages they had exchanged with the plaintiff. His supplemental production five months later was represented as complete, and the court noted that those messages were not in it.
The court then ordered a second imaging, with the plaintiff to pay up to $5,000 of the cost. It warned him that failure to comply could end the case. He brought the phone to the examiner on the day the order set but paid nothing. By his own account the vendor then refused to take the device. He later said that phone had since been lost and replaced.
The court's analysis
Applying the Sixth Circuit's four-factor test for dismissal as a discovery sanction, the court found the plaintiff's conduct willful and contumacious. Quoting circuit precedent, it described contumacious conduct as behavior "perverse in resisting authority and stubbornly disobedient". In its view he had no good-faith explanation for failing to preserve text messages after the September imaging. The court described that failure as indefensible.
The plaintiff argued first that phones auto-delete old messages and clear storage on their own, so nothing was intentionally destroyed. The court noted that he had offered no evidence his phone deleted anything automatically. Even a phone behaving that way, it reasoned, would not displace an obligation to preserve that attached when the complaint was filed, if not before.
On the timing of the deletions the court relied on the forensic consultant's statement that deleted data may remain recoverable only for a limited period. It reasoned that the records recovered in September 2025 had probably been deleted within the preceding months. That placed those deletions after the complaint was filed.
On the payment he argued that he could not afford the $5,000. The court acknowledged that the sum was significant, and that he had appeared with the phone on time. It reasoned that the defendant should not bear the cost of a second imaging the plaintiff's own deletion had made necessary.
He also argued that the loss of his phone left the defendant unprejudiced, because it already held a complete forensic image from September 2025. In the court's view relevant messages went to witnesses after that imaging and were then deleted, so the image was not the complete record he claimed.
The court concluded that the defendant was prejudiced. It pointed to over a year of discovery disputes, the effort spent pursuing what was owed, nearly $15,000 in examination costs, and evidence that some text messages are irreversibly lost.
Why it matters
The duty to preserve continues after the examiner returns the device. A party who resumes deleting creates a second spoliation problem, and the earlier image cannot answer it.
A party who resists a forensic examination order faces sanctions under Rule 37(b)(2)(A), dismissal included. Courts weigh whether the conduct was willful, whether the other side was prejudiced, whether the party was warned that noncompliance could end the case, and whether a lesser sanction would be adequate. Here the court stated that dismissal was proper on that first factor alone, then worked through the rest and found each favored dismissal.
Rule 37(e)(2) would have required a showing that the plaintiff acted with intent to deprive. Rule 37(b)(2)(A) requires none, which is why the route mattered. In the court's view he disobeyed the second imaging order because he paid none of the $5,000. A cost term binds like any other term of an order.
Counsel whose client volunteers a deletion habit on the record should expect an imaging order to follow. If the deleting continues, a second examination may come at the client's expense.
The full opinion is available as a PDF.
