Manufacturing Your Own Evidence: Lessons Learned

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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.