The Messages Disappeared. The Court Changed the Rules of the Case.

A staffing dispute acquired a second record

The unions alleged that DHS directed FEMA to cut its workforce roughly in half and interfered with the renewal of Cadre of On-Call Response/Recovery employees, known as COREs. In a separate September 11 merits order, Judge Illston granted the unions partial summary judgment on their Administrative Procedure Act claims against DHS and FEMA. She found unlawful DHS control over FEMA personnel decisions and arbitrary agency action. She did not decide every claim or set the final scope of relief. The parties must confer, and unresolved remedial issues are due October 9.

That is the public-law dispute. The discovery dispute asks how anyone proves the directives, authorship, and implementation when decision makers conduct business in a channel designed to erase itself. The court's 30-page preservation order identifies FEMA-related Signal chats on personal devices, some with deletion timers of one day, one week, or four weeks. A few surviving screenshots showed discussion of staffing and renewals. The court found by a preponderance of the evidence that other relevant messages had been lost and could not be recovered through additional discovery.

The distinction between a missing document and a missing decision trail matters. The surviving communications could establish that a discussion existed, but not all the instructions, objections, timing, or context that may once have surrounded it. The judge did not purport to reconstruct the exact words of lost messages. Rule 37(e) instead asks what legal response is justified when electronically stored information that should have been preserved is gone.

A deletion timer is a decision, not a law of nature

Karen Evans, a senior FEMA official during the relevant period, testified that she took screenshots of Signal messages she considered relevant, sent those images to her work account, and deleted the originals. The court found that she had enabled auto-delete on work-related chats, continued to use expiring messages during the litigation, and did not preserve everything responsive to the court's orders. In February 2026, after being named a defendant and while an emergency motion was pending, she shortened the timer on one FEMA chat. She made a backup on April 25, but earlier messages had already disappeared, and her April 29 declaration did not mention that backup. The opinion also describes her self-redaction of planner notes that the court later required in unredacted form.

Joseph Guy, then a DHS official, had at least 26 Signal chats with FEMA in their titles on his personal phone. No messages from his phone were produced. He missed a court deadline for a preservation declaration and, on his last day of federal employment, reinstalled Signal without consulting counsel. The reinstallation wiped the chat content. He testified that he meant to restore his messages and believed someone else was preserving work communications. The court found that explanation unpersuasive as to his responsibility to preserve, and the timing highly suspect. It nevertheless refused to find by a preponderance that he deleted messages with the specific intent to deprive the unions of their use.

That restraint is important. A litigant's failure to preserve, even a serious and implausibly explained one, does not automatically satisfy the intent requirement for the harshest sanctions. The court attributed the intentional deprivation finding to Evans's conduct. It distinguished a passive failure to stop an ordinary automatic purge from the affirmative choice to turn on and maintain disappearing-message settings for work-related conversations while litigation was foreseeable and then to select which screenshots would survive.

The rule has two different doors

Federal Rule of Civil Procedure 37(e) applies when electronically stored information that should have been preserved in anticipation or conduct of litigation is lost because reasonable steps were not taken, and the information cannot be restored or replaced through additional discovery. Under subdivision (e)(1), a court that finds prejudice may order measures no greater than necessary to cure it. Under (e)(2), the court may presume lost material unfavorable, instruct a jury on that presumption, or enter the most severe sanctions only upon finding an intent to deprive another party of the information's use in the litigation.

Judge Illston found prejudice from the lost chats. She also found the required intent under (e)(2) based on Evans's actions. The order bars defendants from relying on hindsight testimony denying a substantial FEMA staffing-reduction plan, DHS direction over the plan, or implementation through indiscriminate CORE separations. In future proceedings, the court will presume the lost messages were unfavorable to defendants because they would have been further evidence of the plan, DHS control, and implementation. It also awards the unions reasonable fees incurred in uncovering and addressing the spoliation. The fee amount remains to be negotiated or submitted by October 9.

This is not a default judgment. Nor is it a general judicial declaration that every unpreserved chat contained an admission. The remedies are tied to specific factual issues and future use of the record. They show a court protecting the adversarial process from a party's ability to destroy contemporaneous evidence and then deny, from memory, the very conduct that evidence might have illuminated.

Private phones do not make official decisions private

The government had obligations beyond discovery. The order cites the Federal Records Act and DHS policies requiring preservation of official communications, including chats on personal devices. Defendants argued that the Federal Records Act does not provide the unions a private right of action. The judge noted that the unions were not suing under it; the statute and agency policies were relevant to what reasonable preservation required. The personal-device label did not remove agency business from the scope of a litigation hold or a court order.

That separation is useful outside government. A firm, company, or public agency can prefer encrypted messaging for legitimate confidentiality reasons. Encryption is not itself spoliation, and private phones are not categorically off limits. The collision occurs when the organization cannot identify the custodians and channels where decisions are made, stop deletion when a duty to preserve arises, collect the information with appropriate safeguards, or verify that individual participants have actually complied.

A litigation hold that names email but ignores messaging apps is incomplete if the real decision makers moved their conversations there. A hold that tells people to preserve but leaves one-week deletion timers running may be worse: it creates evidence of notice without a credible method of compliance. And asking a custodian to decide which screenshots are relevant makes the potential witness the sole archivist and first reviewer of evidence about that witness's own conduct. The court's concern about self-selection is not hostility to technology. It is a recognition that preservation requires a process independent of the person's preferred version of events.

For counsel, the immediate exercise is factual rather than ceremonial. Identify all channels used for the disputed work, including personal-device messaging and group chats; identify who controls settings and backups; verify retention and export capabilities before promising production; suspend deletion where legally required; document collection and gaps; and tell the court and opposing counsel promptly if material is irretrievably lost. Those steps require attention to privacy, privilege, employment rules, and jurisdiction-specific duties. They also require technical competence about the actual application, not a policy that assumes all messages live on a server somewhere.

The law cannot restore a conversation; it can refuse a convenient story

The merits order and the evidence order should be read together, but not collapsed. The court ruled on particular APA claims using the record before it, while separately deciding what sanctions lost evidence warrants. Its remedies may be contested, and further relief on the underlying FEMA claims remains unsettled. Neither order means every staffing decision has already been reversed or every affected worker has a backpay award.

The broader lesson is less about Signal than about institutional memory. When the decisive conversation exists only until a timer expires, a later lawyer cannot test the decision against the contemporaneous record. That may be attractive to the person who wants a clean slate. It is costly for everyone else: employees whose livelihoods depend on the decision, citizens who depend on the agency's work, opposing parties seeking evidence, and judges asked to decide what happened. A court cannot make deleted messages reappear. It can make the party that lost them bear a defined part of the uncertainty.

This article analyzes two September 11, 2026 district-court orders in a pending case. The court's merits ruling resolves specified APA claims, while the scope of final relief remains open. It is not individualized legal advice about preservation duties or sanctions in another matter.