Missing text messages can derail a defense. Do your litigation hold protocols capture them?

The Ultimate Fighting Championship and two of its executives are crying “low blow” after a federal court judge ordered them to (1) give him all the communications between the two executives and their attorneys regarding the preservation of evidence in multiple class action lawsuits filed against the UFC, and (2) explain why those communications should not be given to the plaintiffs’ attorneys.

The order is extraordinary in scope. It could have devastating consequences for the UFC and currently is subject to a rare type of appeal.

Regardless of what happens on appeal, the situation provides a teaching moment about the application of litigation holds to mobile devices, and the importance of collecting text messages.

Round one: Plaintiffs get aggressive.

The UFC describes itself as one of the world’s premier mixed martial arts promotions, having grown from a niche sport to a worldwide phenomenon.

Personally, I prefer the “sweet science” of boxing. The kind once practiced by Muhammad Ali and Smokin’ Joe Frazier.

In any event, according to the UFC, its great success has made it a target of class action lawsuits by former UFC fighters seeking billions of dollars in additional compensation.

Note to the UFC: Your target is no bigger than that of any other large employer trying to stay above the rising tide of class action litigation.

Between 2014 and 2025, three such lawsuits were filed against the owners and executive officers of the UFC in federal court in Las Vegas.

The UFC claims that during discovery it produced more than one million documents from 35 current and former employees, collected from a wide array of sources, including email, Microsoft Teams, personal storage drives, and mobile devices.

According to the plaintiffs, however, that was not enough. Not nearly enough.

In mid-2025, the plaintiffs filed a motion for sanctions with a litany of alleged discovery failures and abuses by the UFC and its executives.

Among them were claims that only 50 text messages had been produced and that a large number of text messages were missing or had been destroyed. 

Round two: Judge backs UFC into a corner. 

By January 2026, the judge had concluded that the plaintiffs had made a “preliminary showing of spoliation,” including years of missing text messages from mobile devices.

In a ruling rendered from the bench, the judge ordered the defendants to

• Produce a list of all communications between two UFC executives and their counsel regarding the preservation of relevant materials, dating from January 1, 2014, to January 26, 2026.
• Provide those communications to the judge for his private review.
• Explain why any of those communications should not be given to the plaintiffs.

The judge also ordered the two UFC executives to appear for a hearing in which they could be questioned about their document preservation efforts.

Note to self: Don’t get on the wrong side of a federal court judge.

Round three: UFC gets off the canvas and looks for a last-minute knock-out.

After recovering from what must have been the shock of being required to give a federal court judge 12 years’ worth of privileged communications, with the possibility that he might require their production to the plaintiffs’ attorneys, the UFC took the extraordinary step of filing a writ of mandamus with the U.S. Court of Appeals for the Ninth Circuit.

Normally, court orders cannot be appealed until after final judgment has been entered.

One of the few exceptions to that rule is when the injury caused by an order cannot be remedied on appeal. An order requiring disclosure of privileged information is just such an order. Once the disclosure has been made, the bell has been rung, and it can’t be un-rung by a later appeal.

According to the UFC appeal, the rules that apply to lawsuits in federal court permit sanctions for “spoliation” of evidence if (1) the information should have been preserved in anticipation of litigation, (2) the party failed to take steps to preserve the information, (3) the information was lost as a result, and (4) the information could not be restored or replaced by additional discovery.

Once those four requirements are met, and if the opposing party is prejudiced by the loss of the information, the court is authorized to impose sanctions that are no greater than necessary to cure the prejudice.

More extreme sanctions, like dismissal of the lawsuit (if the plaintiff is at fault) or entry of judgment against the defendant (if the defendant is at fault), can be imposed if the party who failed to preserve the evidence intended to deprive another party of the information.

The UFC claimed in its writ that it was working with the carriers to retrieve the texts. It also claimed that it took reasonable steps to preserve information relevant to the litigation, that no showing had been made that the missing text messages could not be restored by other means, and that there was no evidence of intent to deprive the plaintiffs of the information.

The writ was filed on January 20. The plaintiffs have not yet responded, and only time will tell whether the UFC can pull itself up off the mat.

Text messages can contain relevant information, and lots of it.

If appropriate protocols are in place for implementing litigation holds, corporate defendants can lock down huge amounts of potentially relevant information.

Among other things, a company can suspend its rules relating to document destruction, image mailboxes as they exist at the time the hold is implemented, and turn off auto-delete functions for email.

Mobile devices typically belong to employees, but if they are used by the employee to conduct the employer’s business, most courts will say that the phone and its business-related texts are subject to the employer’s control and covered by a litigation hold.

Your standard litigation hold probably includes text messages, but you could still face a situation where you can no longer easily secure relevant text messages because the employee has deleted them or, worse yet, is no longer your employee.

I won’t comment on how this was handled by the UFC because we don’t know what happened or who was responsible, and we may never find out. But the safest approach is to make a rigorous effort to collect all relevant texts at the start of a case. Don’t wait until later, when the texts or the texters are no longer around.  

If you do, you could end up facing a knock-out by a judge.