Electronic Discovery Law
Court Dismisses Complaint as Discovery Sanction for "Extensive and Egregious Misconduct"
In this wrongful termination case, defendant Tyco sought to prove that plaintiff had misrepresented his credentials when he applied for employment. At issue were several versions of plaintiff’s resume, some of which had indicated he held an M.B.A.; plaintiff suggested those may have been submitted by “someone else,” possibly a recruiter or headhunter, and claimed he would have indicated he was only a “candidate” for an M.B.A. Previously, Tyco had filed a motion to dismiss the case, alleging that plaintiff had lied at his deposition and fabricated documents. The court denied the motion without prejudice, finding that the evidence was not sufficiently clear and convincing to justify such a serious sanction.
Tyco then moved to compel the production of plaintiff’s laptop and further deposition testimony. The court granted Tyco's motion over plaintiff's objection, and ordered that plaintiff to submit to a further deposition by July 22, 2005, for the sole purpose of identifying computers and other media storage devices used by him during relevant time periods, and produce, by July 29, 2005, all computers and media storage devices presently in his possession, under his control or accessible to him, for inspection by Tyco’s expert.
The forensic inspection of plaintiff’s laptop and disks showed evidence of tampering, including: deleted resumes, system date and time manipulations, access histories showing that various relevant documents were accessed after the court’s order and before plaintiff’s second deposition, and other fragments of relevant documents and emails that had not been produced.
Tyco filed a renewed motion to dismiss the complaint, alleging that plaintiff: (1) testified falsely during his deposition; (2) fabricated a resume to support his false testimony; and (3) deliberately deleted, destroyed, or concealed documents after he was put on notice that such documents were relevant. Tyco argued that the only appropriate sanction for plaintiff’s acts was dismissal of his complaint and an award of attorney's fees and expert costs.
The court agreed, finding:
Clear and convincing evidence demonstrates that Plaintiff has engaged in extensive and egregious misconduct in this case. First and foremost, he deleted or otherwise failed to produce documents that were potentially relevant to this litigation. The forensic analysis of Plaintiff's computer and electronic storage devices showed that a number of files with titles containing the words “resume,” “cover letter,” or “Tyco,” existed as recently as November 2004, and have simply disappeared during the course of this litigation. Although EvidentData managed to retrieve certain resume files, which Plaintiff now concedes he “may have deleted,” the remaining documents are simply unavailable.
Not only have these documents been rendered no longer accessible, but they disappeared during a period when Plaintiff must have been aware of their relevance. Plaintiff was put on notice, as early as November 2004, that various versions of his resume might become an issue in this litigation, and that Defendant was interested in the contents of his computer.
Even if Plaintiff was uncertain about whether the contents of his computer would become an issue in this litigation, any doubt on that subject should have been erased at least as of April 28, 2005, when this court explicitly invited Defendant to seek further discovery regarding Plaintiff's computer and files. Nonetheless, there is no doubt that on April 29, Plaintiff modified potentially relevant files; a number of other files were modified on May 2, 2005.
It should also have been crystal clear after June 13, 2005, when Defendant filed a motion to compel production of Plaintiff's computer and electronic storage media, that Plaintiff's computer would be subject to some scrutiny. Yet Plaintiff unquestionably modified files again on June 18, 20, and 28. On July 6, 2005, the court allowed Defendant's motion, and unbelievably, Plaintiff continued to access and modify files. It appears that several files were accessed as late as July 24, 2005; these files were no longer available two days later when Plasse produced his computer and other electronic storage devices.
Plaintiff's explanation for this behavior is more than unconvincing; it verges on the absurd. While it is understandable that a litigant might find it useful to review potentially relevant information in the course of preparing his lawsuit, Plaintiff's behavior goes far beyond this. As Plaintiff himself admits, he continued to “make use” of his computer to modify and delete resumes and other documents, long after he must have been aware of the interest in such documents. In particular, he has now admitted that he “may have deleted” a resume created in January 2000, six months before he applied to work at Tyco, which, like the Personnel File Resume, states that Plaintiff has an MBA. As the forensic report makes clear, not only did Plaintiff delete this file, but he did so at some point between June 28, 2005, and July 26, 2005, well after Defendant had filed its June 13 motion to compel, and possibly after the court allowed the motion on July 6.
Plaintiff's explanation that he continued to “make use” of his computer also fails to account for the systematic destruction of files. The forensic analysis recovered one undeleted resume on Plasse's laptop. All other files with names containing the words “resume,” “cover letter,” or “Tyco,” have disappeared. Normal use does not explain the systematic elimination, while this litigation was pending, of virtually all potentially relevant files.
Significant evidence also suggests further misconduct on Plaintiff's part. The forensic analysis revealed that he changed the system date on his laptop computer on July 24, 2005. Plaintiff claims that, since this date was his birthday, he was just “fooling around” with the dates, not deliberately attempting to back-date documents. However, forensic analysis suggests that several documents were opened while the system date was altered. Moreover, regardless of whether laptop date manipulation is some sort of birthday fun for Plaintiff, it is clearly an exercise he should have known to avoid two days before the deadline for production of his laptop.
The court concluded that plaintiff had destroyed or concealed evidence, engaging in an egregious pattern of misconduct that hampered the proceedings in the case. It dismissed the complaint with prejudice, and invited defendant to submit an application for costs and attorneys’ fees.
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