This update addresses the following recent developments and court decisions involving e-discovery issues:
- A Fourth Circuit decision affirming dismissal of plaintiff’s lawsuit as a sanction for its failure to disclose documents relating to its damages claim until well after the discovery cut-off and for false interrogatory responses and deposition testimony regarding damages;
- A Southern District of Illinois opinion imposing almost a million dollars in fines for defendants’ failure to implement appropriate litigation holds, produce requested documents, and otherwise satisfy the court’s discovery orders;
- An Eastern District of Michigan order adopting a Magistrate Judge’s report and recommendation proposing the “harsh sanction” of an irrefutable adverse inference instruction in response to defendant’s spoliation and rejecting the defendant’s attempt to import the proposed modifications to Federal Rule of Civil Procedure Rule 37(e) into the court’s analysis; and
- A District of Kansas opinion adopting a Magistrate Judge’s recommendation that the court deny spoliation sanctions because the moving party had failed to make a showing of prejudice with respect to the destroyed documents.
1. In Projects Management Co. v. DynCorp Int’l, LLC, 2013 WL 5912516 (4th Cir. Nov. 5, 2013), the U.S. Court of Appeals for the Fourth Circuit affirmed dismissal of Projects Management’s suit for not disclosing until after the end of discovery documents relating to damages and for providing false interrogatory responses and false deposition testimony related to damages.
The United States Department of State contracted with DynCorp to help develop a civilian police force in Iraq, and DynCorp hired PMC in August 2008 as a subcontractor to provide “operations and maintenance support.” Id. at *1. Under the subcontract, DynCorp agreed to pay PMC periodically via wire transfer to PMC’s account with the Kuwait Gulf Bank. Once PMC began performing under the contract, PMC sent DynCorp invoices with payment instructions. Initially, those instructions directed DynCorp to submit payment to the Kuwait account, but in December 2008, the invoices began directing payment to a bank account in Lebanon in the name of PMC Managing Director Hussein Fawaz. After confirming the change with PMC personnel, DynCorp began sending payments to the Lebanon bank. DynCorp later terminated the contract.
PMC then sued DynCorp in federal court, alleging that DynCorp had breached the subcontract by sending payments to the Lebanon account rather than the Kuwait account. During discovery, DynCorp learned that some of PMC’s obligations had been paid with funds from the Lebanon account. Id. at *2. After discovery closed, DynCorp moved for partial summary judgment, which the court denied. Id. PMC thereafter produced 2,000 documents “demonstrating that PMC acquiesced to Fawaz’s use of the Lebanon Account.” Id. at *3. PMC also subsequently disclosed its damages calculation, seeking the “entire amount” of $6.9 million that DynCorp had paid into the Lebanon account. Id. at *2.
DynCorp filed a motion in limine citing three reasons why PMC should be not be allowed to present its damages calculation at trial. Id. First, PMC had waited until after the discovery cut-off to disclose the calculation, thereby preventing DynCorp from taking discovery on the damages calculation or moving for summary judgment on that issue. Second, PMC’s damages calculation incorrectly included millions of dollars PMC had paid from the Lebanon account to PMC employees and subcontractors “in satisfaction of PMC obligations.” Id. Third, PMC had intentionally withheld documents showing that “funds were paid from the Lebanon Account to satisfy PMC obligations with the contemporaneous knowledge of PMC’s owners.” Id.
DynCorp also filed a motion for sanctions against PMC for abusing the judicial process. DynCorp argued that the late production had prevented DynCorp from fully deposing PMC’s Rule 30(b)(6) representatives and “revealed that PMC’s Rule 30(b)(6) representatives provided false or misleading testimony and that PMC provided false interrogatory answers.” Id. As relief, PWC requested that the district court dismiss the case. The district court granted the motion for sanctions, but did not dismiss the case. Instead, the district court ordered PMC to produce both Rule 30(b)(6) witnesses by August 11, 2012 and held that the “factual substance of each late-produced document be deemed admitted.” Id.
PMC thereafter filed a motion for a protective order. In the motion, PMC asked to delay the depositions until August 13, 2012—two days before trial. DynCorp renewed its motion in limine and the motion to dismiss the case. The district court again declined to dismiss the case and instead ordered PMC to produce the Rule 30(b)(6) witnesses by the August 13 date. The district court also warned that it would consider additional sanctions, such as dismissal, if PMC “failed to ameliorate the prejudice that its discovery defalcations caused DynCorp.” Id.
On August 13, PMC presented the two witnesses for depositions. But PMC also notified DynCorp that neither witness was a Rule 30(b)(6) witness any longer, and offered a new Rule 30(b)(6) representative. Id. at *4. PMC also produced two additional boxes of relevant documents, some in Arabic, in the hours prior to the August 13 deposition. Id. at *5.
DynCorp renewed its motion in limine and motion to dismiss. The district court granted the motion in limine. With respect to the motion to dismiss, citing United States v. Shaffer Equip. Co., 11 F.3d 450 (4th Cir. 1993), the district court considered six factors in deciding whether to dismiss the case. Projects Management Co. 2013 WL 5912516, at *5. First, the court held that PMC had shown a “high degree of culpability” by making a “calculated effort” to avoid discovery on the damages calculation. Id. at *6. For example, PMC had withheld documents showing payment of PMC subcontractors from the Lebanon account and indicating that a PMC employee “contemporaneously knew that funds from the Lebanon Account were being used to satisfy PMC obligations.” Id. at *4, *6. Likewise, the documents suggested the PMC witnesses had lied about the damages issue, because the documents “directly contradicted” the witnesses’ deposition testimony that PMC had ceased paying subcontractors once DynCorp began making payments to the Lebanon account. Id. The produced documents suggested that PMC’s interrogatory answers regarding the damages issue were false because the documents contradicted a PMC response stating that PMC had not received funds from the Lebanon account and was unaware of the extent to which those funds were used to pay “obligations of PMC.” Id. Second, the district court held that PMC itself, rather than counsel, had “committed serious discovery defalcations.” Id. Third, the district court found that the discovery abuses had “caused substantial prejudice to the judicial process.” Id. Fourth, the district court held that DynCorp had suffered prejudice because the failure to produce documents prevented DynCorp from “conducting effective discovery” and effectively deposing the Rule 30(b)(6) witnesses. Fifth, the district court noted that “several attempts to provide partial remedies ha[d] failed.” Id. Sixth, the district court held that there is a “public interest in ensuring the integrity of the judicial process.” Id. Having considered the six factors, the district court granted the motion for sanctions and dismissed the case.
PMC appealed. It first challenged the district court’s finding that one of the Rule 30(b)(6) witnesses had provided false testimony. The Fourth Circuit held that the district court’s finding was not clearly erroneous: the witness had testified that she was unaware of any payments that benefitted PMC and originated in the Lebanon account. The same witness, however, sent and received emails discussing payments from the Lebanon account—including an email about using the account to pay PMC staff salaries, and that witness had received a spreadsheet detailing PMC expenses paid out of the Lebanon account. Id. at *7.
PMC also argued that DynCorp had not raised the false interrogatory response as an issue in its motion for sanctions and that the district court therefore erred in considering that document. The Fourth Circuit rejected that argument, holding that a district court may consider any conduct whatsoever when exercising its inherent authority to dismiss a case for discovery abuses. Id. at *8. The Fourth Circuit added that the record supported the district court’s conclusion that the response was false, finding that PMC’s claim that it had received no funds from the Lebanon account and was unaware of “the extent, if any, to which payments were made from Mr. Fawaz’s personal account in Lebanon to satisfy” PMC’s obligations was directly undercut by one of its Rule 30(b)(6) witnesses who had received emails demonstrating her “personal, contemporaneous knowledge of Fawaz’s use of the Lebanon Account to pay PMC’s indebtedness.” Id.
PMC also argued that it was not sufficiently culpable to warrant dismissal. Id. The Fourth Circuit held that the district court did not clearly err in concluding otherwise. For support, the Fourth Circuit cited the inconsistencies between the emails on the one hand and the deposition testimony and interrogatory responses on the other. Id.
PMC next argued that neither DynCorp nor the judicial process suffered prejudice, because “DynCorp received all relevant documents before the trial date.” Id. at *9. The Fourth Circuit rejected that argument, noting that PMC had disclosed many documents long after discovery had closed—up to the day before trial. That tardiness, the Fourth Circuit held, deprived DynCorp of the opportunity to conduct appropriate discovery and take effective depositions.
Finally, PMC argued that a lesser sanction would have sufficed and that public policy supported deciding cases on the merits. The Fourth Circuit held that the district court did not abuse its discretion, as PMC’s actions were intentional and the district court had tried lesser sanctions before finally dismissing the case. The Fourth Circuit therefore affirmed. Id.
2. In In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2013 WL 6486921 (S.D. Ill. Dec. 9, 2013), U.S. District Chief Judge David R. Herndon, in an opinion addressing multiple discovery transgressions, imposed nearly $1 million in fines for defendants’ failure to adequately implement litigation holds, produce requested documents, and otherwise satisfy the court’s discovery orders.
Plaintiff Steering Committee (“PSC”) brought a product liability case against Boehringer Ingelheim International GMBH (“BII”) and Boehringer Ingelheim Pharmaceuticals Inc. (“BIPI”) regarding use of the drug Pradaxa. In a decision dated September 25, 2013, the court had rejected a sanctions motion filed by the PSC, finding that defendant was not under a duty to preserve documents at the time its vice president’s emails were destroyed because there was no showing that defendant knew or should have known that the litigation was imminent. In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2013 WL 5377164 (S.D. Ill. Sep. 25, 2013).
With this motion, PSC sought sanctions alleging four discovery violations relating to the failure to: (1) preserve the files of Dr. Thorstein Lehr, a scientist who worked on Pradaxa; (2) preserve and timely produce the files of defendants’ sales representatives; (3) produce all files from one of defendants’ main shared network drives; and (4) preserve relevant text messages on employees’ cell phones. Defendants acknowledged various discovery shortcomings but attributed them to honest mistakes and miscommunications.
Citing a pattern of “discovery abuses” and noting that “this litigation has been plagued with discovery problems primarily associated with misconduct on the part of the defendants,” the court agreed with PSC’s allegations. In re Pradaxa, 2013 WL 6486921, at *2. Finding each of PSC’s allegations to be worthy of sanctions, the court underscored the “cumulative effect that the Court not only can but should take into account.” Id.
As an initial matter, the court found defendants had a duty to preserve documents and that such duty was broad. BIPI’s duty to preserve arose when it received a “letter regarding the first post-launch Pradaxa liability suit,” and BII’s duty to preserve arose, at the very latest, when it issued a litigation hold shortly thereafter in April 2012. Id. at *6. At that time, the court noted, defendants knew that national litigation was imminent regarding the sale of Pradaxa. Once the duty to preserve was triggered, defendants were under an obligation to develop a plan to find and preserve all potentially relevant evidence. Id. at *8.
Throughout its opinion, the court faulted defendants for their failure to actively and comprehensively implement its litigation hold. According to the court, defendants had implemented the hold on a piecemeal basis, applying it to employees it knew had relevant information and extending it to others once the full scope of plaintiffs’ requests and the relevance of the employees’ information became apparent. This, the court held, was “wholly inadequate in light of the size and scope of this litigation.” Id. at *14. In the context of national litigation, the company should have known that all sales information was potentially relevant and that all information relating to the drug, and its development and marketing, should have been preserved. Id. at *15.
The court found each of PSC’s specific complaints was warranted. First, the court noted that Dr. Lehr was a “high-level” scientist working on Pradaxa. Id. at *1. Defendants, however, never disclosed his existence, and PSC only learned of him in a deposition. BII admitted that the scientist was not subject to the litigation hold because he was not “identified as a custodian.” Id. The court was “stunned” that Professor Lehr was not so identified, id. at *12, and underscored that defendants, not plaintiffs, are “in the best position to identify” such persons. Id.
Second, the court noted that, in two separate incidents, defendants had failed to identify different special sales forces. Only after PSC separately discovered their existence did defendants admit that they should have produced additional documents. Even then, however, defendants failed to produce the documents and continued to maintain the documents were already produced. Defendants finally admitted that the documents from these special sales forces were stored in special fields not produced to plaintiffs.
Third, one of defendants’ main network drives contained over 1.8 million files, but defendants notified PSC that it had failed to produce approximately 500,000 documents because its IT department had failed to provide the third-party vendor with appropriate access rights. Id. at *15. The court stated that normally such mistakes at the beginning of litigation might be overlooked, but that “the reasonable inferences to be drawn from the actions of the defendant at this point in time are that such maneu[vers] are by design.” Id. at *16.
Fourth, PSC had specifically requested text messages from defendants’ sales employees, but “[a]mazingly,” noted the court, the defendants’ hold request did not specifically extend to text messages until one year later. Id. The court faulted defendants for failing to fulfill its duty to explain to its employees that text messages were included within the scope of the litigation hold. Further, the court held that defendants behavior fell outside the safe harbor in Federal Rule of Civil Procedure 37(e) for information lost as a result of automated deletion. Id. at *17. The deletions in this case should have been prevented, noted the court, because the defendants had a specific duty to preserve such information, the text messages were saved (and automatically deleted) on company-issued phones, and the company was aware that employees were using their phones for business purposes. Id.
Given the history of defendants’ discovery abuses, the court found that each of these discovery transgressions was committed in bad faith. The court ordered defendants to produce complete files of Professor Lehr within 7 days, complete files of the sales representatives within 14 days, complete files of the shared network drive within 30 days, and complete files of the text messages within 14 days. Id. at *19-*20. If any files were destroyed or could not otherwise be produced within the specified time, the court ordered defendants to provide its reasons to the court. Id. The court also ordered reimbursement of PSC’s costs and fees. Id. at *20. Finally, because the “wrongs here are so egregious in the eyes of the Court,” Judge Herndon imposed $931,500 in fines. Id.
3. In Barrette Outdoor Living, Inc. v. Mich. Resin Reps., 2013 WL 3983230 (E.D. Mich. Aug. 1, 2013), Judge Julian Cook, Jr., adopted a Magistrate Judge’s report and recommendation proposing the “harsh sanction” of an irrefutable adverse inference instruction in response to defendant’s “substantial, intentional, [and] bad faith” spoliation, rejecting the defendant’s attempt to import proposed modifications to Federal Rule of Civil Procedure Rule 37(e) into the court’s analysis.
The plaintiff filed suit in July 2011 against the defendant, a former employee, asserting claims for fraud, breaches of fiduciary duties, interference with ongoing business activities, conspiracy, and RICO violations allegedly committed during defendant’s employment. Id. at *1. On February 6, 2013, the plaintiff moved for sanctions against the defendant claiming, inter alia, that he had destroyed evidence on his personal laptop computer and cellular phone in violation of a court order compelling their production. Id. The court referred the motion to Magistrate Judge Laurie Michelson.
In its sanctions motion, the plaintiff claimed that the defendant engaged in three instances of sanctionable conduct: deleting files from his work computer at the time of his termination; exchanging his cellular phone after the issuance of a preservation notice; and using “scrubbing software” to remove 270,000 files from his personal laptop during the litigation. Id. at *3. Magistrate Judge Michelson rejected the plaintiff’s first claim, finding that, although the issue was “certainly close,” the defendant did not have a duty to preserve the files on his work computer at the time of their deletion. Id. at *12. She based that finding on the defendant’s lack of “notice—even equivocal notice—that [the plaintiff] intended to initiate legal proceedings” at that time. Id. at *11.
But “[c]ircumstances had changed” by the time the defendant exchanged his cellular phone. Id. Magistrate Judge Michelson noted that the plaintiff first notified the defendant two days after his termination that it would be investigating him, and expressed “escalating concern” in communications over the next several weeks. Id. Prior to filing suit, the plaintiff sent the defendant a preservation notice demanding that he preserve all electronic storage media, including his cellular phone. Id. at *7. Nevertheless, that very evening the defendant exchanged his cellular phone with his carrier. Id. Magistrate Judge Michelson held that these facts warranted a spoliation sanction, as the defendant (i) “should have known” that he had a duty to preserve his cellular phone, (ii) the timing of the exchange indicated bad faith, and (iii) the finding of bad faith entitled the plaintiff to a presumption that the evidence was relevant to the case. Id. at *13-*14.
Magistrate Judge Michelson then addressed the “relatively straight-forward” issue of the defendant’s file deletions from his personal laptop. Id. at *15. She noted it was “beyond dispute” that he was under a duty to preserve at that time, as the litigation had been ongoing for over a year. Id. Magistrate Judge Michelson also noted that “temporal proximity” again showed the defendant’s bad faith, as he first ran wiping software on the laptop one week after the plaintiff filed a motion to compel its production and later used similar software to delete the 270,000 files. Id. She also reiterated that the defendant’s bad faith entitled the plaintiff to a “presumption of relevance.” Id. at *16. As such, Magistrate Judge Michelson concluded that the defendant’s conduct in deleting files from his personal laptop also constituted sanctionable spoliation. Id. at *17. Given defendant’s bad faith spoliation, the Magistrate Judge recommended the following sanctions: (i) $25,000 for the plaintiff’s fees and costs in bringing the sanctions motion; (ii) $10,000 for the plaintiff’s increased discovery expenses; and (iii) an adverse inference instruction at trial that the defendant’s laptop and cellular phone contained information unfavorable to him. Id. Id. at *19.
On May 1, 2013, the defendant filed objections to Magistrate Judge Michelson’s findings in the district court. Id. at *1. Specifically, the defendant argued that the adverse inference instruction (i) was “unduly harsh” in light of proposed changes to Federal Rule of Civil Procedure 37(e) that would limit courts’ authority to impose sanctions for spoliation and (ii) should be permissive, rather than irrefutable, when given to the jury. Id. at *2.
The court conducted a de novo review of the challenged portion of the Magistrate Judge’s report and recommendation. Id. at *1. The court first rejected the defendant’s argument regarding the proposed changes to Rule 37(e), noting that the changes were “not the current legal standard” and thus declined to adopt them. Id. at *2. The court also determined that the adverse inference instruction was warranted given Magistrate Judge Michelson’s finding that the defendant had deleted 270,000 files from his laptop after being ordered to produce it for forensic imaging, which the court found to be a “willful violation” of the order. Id.
The court then dispensed with the defendant’s contention that the adverse inference instruction should be permissive, rather than irrefutable, when given to the jury. Id. The court held that the instruction had to be irrefutable given that the defendant’s spoliation was “substantial, intentional, in bad faith, and occurred during active litigation” and thus “require[d] a harsh sanction.” Id. The court therefore adopted Magistrate Judge Michelson’s report and recommendation in its entirety. Id. at *3.
4. In Herrmann v. Rain Link, Inc., 2013 WL 3974535 (D. Kan. Aug. 7, 2013), Judge Richard Rogers adopted Magistrate Judge Gary Sebelius’s recommendation that the court deny plaintiff’s spoliation sanctions, finding that Herrmann had failed to show that some records had been destroyed and that Herrmann had not demonstrated prejudice with respect to the destroyed documents.
The dispute arose after Rain Link allegedly did not allow Herrmann, who was disabled, to return to work. Id. at *2. Herrmann filed an administrative discrimination charge with the Kansas Human Rights Agency, which instructed Rain Link to preserve relevant documents. Id. After the Kansas administrative proceeding concluded, Herrmann sued Rain Link under the Americans with Disabilities Act and the Kansas Act Against Discrimination. Id. Herrmann then learned that Rain Link had lost or destroyed relevant document and thereafter filed a motion for spoliation sanctions seeking an adverse jury instruction, exclusion of certain of defendant’s evidence, monetary sanctions, and other relief.
The Magistrate Judge initially set forth the governing legal standard. Spoliation sanctions are available when a party shows both (1) that the alleged spoliator had a duty to preserve evidence because litigation was imminent and had nonetheless destroyed the evidence, and (2) that the destruction prejudiced the moving party. Id. (citing Burlington Northern & Santa Fe Ry. Co. v. Grant, 503 F.3d 1013 (10th Cir. 2007). In this case, the Magistrate Judge concluded that Rain Link did have a duty to preserve certain documents, and Rail Link admitted that it had anticipated litigation over the alleged discrimination. Id.
Notwithstanding this conclusion, the Magistrate Judge nonetheless recommended against granting plaintiff’s spoliation sanctions. First, the Magistrate Judge held that Rain Link had not destroyed one alleged group of records, data purportedly showing that Rain Link’s “work in progress” had declined between 2004 and 2011. According to the Magistrate Judge, there was insufficient evidence that such data ever existed in the first place: a former Rain Link employee had sent Herrmann a letter mentioning the declining work in progress, but Rain Link was both “unaware” how the former employee came up with the figures and also unable to produce historical figures about “work in progress.” Id. at *4.
Second, the Magistrate Judge held that Herrmann had failed to prove prejudice from the destruction of the remaining sets of records at issue. One group was electronic copies of e-mails between Rain Link and a potential lender that had requested documentation about Herrmann’s separation of service. Id. at *3. Rain Link had retained only hard copies of the emails, but Herrmann claimed prejudice because the emails’ attachments were unavailable and because the failure to preserve the original electronic files supported plaintiff’s claim that Rain Link had probably destroyed other relevant evidence as well. Id. The Magistrate Judge rejected this argument, however, because plaintiff “failed to articulate what he expect[ed] this evidence would have shown and how it would have been relevant to the claims or defenses” in the case. Id.
Other records at issue were draft corporate meeting minutes that allegedly concerned Herrmann. Herrmann asserted prejudice because the drafts purportedly would have shown that Rain Link had created the minutes after the fact and thus had used the minutes “merely to ‘paper the file’” rather than record “events that actually occurred.” Id. at *4. Herrmann also argued that the records’ metadata would have “illuminated the content and sequence of revisions” to the minutes and thus “supported [his] contention that the meetings never took place and that defense counsel fabricated the 2010 documents.” Id. The Magistrate Judge rejected these arguments, as Rain Link had conceded “that the minutes were prepared after-the-fact in order to respond to [a lender’s] loan requirements.” Id. For that reason, the Magistrate Judge added, “it [was] difficult to see how [Herrmann] envision[ed] the metadata would somehow show the meetings never took place or that defense counsel fabricated the documents.” Id.
The final document was the native version of a memorandum retained only in pdf form that Rain Link’s counsel had prepared to memorialize a conversation with Herrmann’s counsel about the reason for Herrmann’s termination. Herrmann asserted prejudice because the document’s native format was necessary to provide metadata that could establish the document’s true creation date, which Herrmann hoped would discredit the surviving version’s authenticity. Id. at *5. The Magistrate Judge rejected that argument based on an affidavit by Rain Link’s counsel confirming that the surviving copy accurately “memorialize[d] his phone call with plaintiff’s counsel . . . on May 6, 2009.” Id. at *5. The Magistrate Judge stated that the issue “presents a close call as to prejudice because the metadata could have been relevant had it shown the document was created well after the phone call on May 6.” Id. The Magistrate Jude concluded, however, that plaintiff had produced no evidence that Rain Link’s counsel would lie to the court. Id.
Citing In re Krause, 367 B.R. 740 (Bankr. D. Kan. 2007), Herrmann argued that Rain Link had destroyed the records intentionally and that the court could therefore presume prejudice. The Magistrate Judge rejected this argument, finding that the Tenth Circuit had ruled since Krause that “it is necessary to demonstrate prejudice.” Hermann, 2013 WL 4028759, at *3 (citing Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136 (10th Cir. 2009)).
The Magistrate Judge determined that the destruction was negligent, rather than intentional, and held that Herrmann had failed to prove the prejudice necessary for spoliation sanctions. Hermann, 2013 WL 4028759, at *3. The Magistrate Judge added that Rain Link had not destroyed any records in bad faith, and therefore the Magistrate Judge recommended that the district court deny Herrmann’s request for spoliation sanctions, such as adverse-inference jury instructions, attorneys’ fees, and other monetary sanctions.
The Magistrate Judge also recommended that the court deny the “remainder of plaintiff’s motion without prejudice.” Id. at *6. The Magistrate Judge explained that another judge “might reach a different conclusion” about Herrmann’s claim of prejudice from loss of the legal memorandum, which he deemed a “close call.” Id. The Magistrate Judge added that the district court might also allow Herrmann to introduce evidence of spoliation to the jury, as such evidence “might be helpful for determining the probative value of the documents referenced” in the Magistrate Judge’s recommended decision. Id. The district court adopted the Magistrate Judge’s recommendation.
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The E-Discovery Task Force of Sidley Austin LLP
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