Manufacturing Your Own Evidence: Lessons Learned

Manufacturing Your Own Evidence: Lessons Learned

In Paulina Connery v. Generations Family Medicine, P.C., et al, Plaintiff allegedly changed the bodies of emails sent from Defendants to Plaintiff and used the emails as evidence to support her claim. Plaintiff sued defendant under Title VII of the Civil Rights Act for sexual harrassment as well as Defendants’ retaliation for Plaintiff threatening to file a charge with EEOC.

One of the bodies of the emails Plaintiff supplied to Defendant in paper format is an instruction from the Defendant’s practice administrator to Plaintiff “not to discuss your employment with employees here at GFP or EHS also not to contact EEOC or any outside party”. Defendants’ alleged that the email was falsified and provided analysis from an independent forensic analyst that confirmed their suspicion. Based on the expert’s affidavit, it appears that Plaintiff changed the body of the message when she forwarded it to her personal email account to make it seem as if the practice administrator sent the damaging email. While it is difficult to change the body of a sent email without a lot of computer knowledge, it is very easy to edit the body of an email that is being forwarded. In the Connery case, the forensic expert located the original email that was used as the basis of the forwarded message and determined that it did not mention EEOC at all.

A second email presented by plaintiff in paper format and sent from one of the male Defendants to the Plaintiff states “I was told that you and Bao have your “approach” with one another after hours. I am just kidding around.” The email chain continues with plaintiff responding, “On a personal note please – please STOP!!!!!! helping/creating/talking these gossip rumors about Dr. (name ommitted) and I are having an affair, staying late after work or anything that feed the gossip fire at our office.” Once again the email was a forwarded email and Defendants expert determined that the original email used as a basis for the forwarded email contained no such language.

Defendants requested the Court order forensic analysis of Plaintiff’s computer systems to determine the authenticity of the emails as well as sanctions for intentional falsification of evidence. The Court dismissed the sanctions motion as moot because the Court dismissed the entire case on Summary Judgment.

In Victor Stanley v. Creative Pipe, 2010 WL 3530097 (D. MD. Sept. 9, 2010), Judge Grimm put together a chart of spoliation sanctions organized by judicial circuit which details the different levels of sanctions that are applicable in spoliation cases. Judge Grimm discusses three types of sanctions for spoliation behavior including sanctions in general, dispositive santions, and adverse inference instructions. “Sanctions in general” refers to imposing monetary costs on a participant that created unnecessary court costs for not playing by discovery rules. Adverse inference sanctions refers to a presumption that the evidence that was destroyed was both relevant and damaging to the spoliator. Dispositive sanctions allow a judge to dismiss the entire case.

Judge Grimm’s chart is unique in outlining when and how severe the sanctions should be applied in different cases. In order for the Court to apply dispositive sanctions ”the court must be able to conclude either (1) that the spoliator’s conduct was so egregious as to amount to a forfeiture of his claim, or (2) that the effect of the spoliator’s conduct was so prejudicial that it substantially denied the defendant the ability to defend the claim.” Silvestri v. Gen. motors Corp., 271 F.3d 583, 593 (4th Cir. 2001).

In Paulina Connery, the Court avoided the issue of dispositive motions for spoliation by ruling for the Defendants on the merits.

Counsel’s failure to search archived emails results in monetary sanctions

Counsel’s failure to search archived emails results in monetary sanctions

In re A&M Florida Properties II, 2010 Bankr. LEXIS 1217 (Bankr. S.D.N.Y, Apr. 7, 2010)

Plaintiff’s counsel agreed to have Plaintiff conduct a “company-wide” search without a full understanding of Plaintiff’s email system. Counsel failed to realize that employees had the ability to move emails from their inboxes into archive folders on their local machines and regularly did so. Deleted items were also moved into a deleted items folder on the system.

While preparing for a deposition, Defendants asked for the results of the “company-wide” search, and Plaintiff responded by producing 28 emails. Defendant brought a motion detailing Plaintiffs  failure and the parties agreed to hire a forensic expert. The expert searched live inboxes on the server because neither the expert nor Plaintiff’s counsel was aware of the existence of archive folders on individual machines. Defendant located emails within its own corpus of data which should have been produced by Plaintiff and requested a status conference with the court to discuss possible spoliation sanctions, intentional destruction of evidence.

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Producer’s use of computer after entry of an injunction prohibiting destruction of relevant data did not constitute spoliation

Producer’s use of computer after entry of an injunction prohibiting destruction of relevant data did not constitute spoliation

Mintel International Group, Ltd. v. Neergheen, 2010 U.S. Dist. LEXIS 2323 (N.D. Ill. Jan. 12, 2010)

Defendant producer had worked in plaintiff’s marketing department, and had had access to plaintiff requestor’s confidential information. Defendant had signed an employment agreement containing a confidentiality clause, and a covenant not to compete. In 2007, plaintiff restructured its marketing department and eliminated defendant’s job. Defendant was offered a temporary position in January 2008, and began to look for new employment, of which plaintiff was aware. Defendant was hired by a new company in April, 2008.

Plaintiff had provided defendant with a laptop, which was used, along with USB drives, for his work with plaintiff. During his exit interview, plaintiff did not ask defendant to return the laptop and devices, and defendant continued to use the laptop and storage devices during his temporary employment. Between April 23, when he informed plaintiff he was leaving, and April 30, plaintiff began monitoring defendant’s e-mails. During this period, defendant sent 8 emails to his personal e-mail address (a practice not prohibited by plaintiff).

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Judge Scheindlin analyzes the law of spoliation

The Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010)

Plaintiff producers were a group of investors who had brought an action to recover $550 million lost as a result of the liquidation of two British Virgin Island hedge funds. In October, 2007, the Citco Defendants claimed that large gaps in plaintiffs’ document production had been found. Depositions were held and declarations submitted between October, 2007 and June 2008. As a result of this discovery, defendant requestors moved for sanctions, alleging that plaintiffs had failed to properly preserve and produce documents, and had submitted false declarations regarding their efforts.

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