eDiscovery Daily Blog

Nobody Doesn’t Like Terminating Sanctions for Fabrication of Text Messages: eDiscovery Case Law

In Lee v. Trees, Inc., No. 3:15-cv-0165-AC (D. Or. Nov. 6, 2017), Oregon Magistrate Judge John V. Acosta granted the defendants’ motion for terminating sanctions where the plaintiff was found to have manufactured text messages to support her claims of sexual harassment, retaliation, and wrongful termination.

Case Background

In this case, the plaintiff (Sarah Lee) had a consensual romantic relationship with her supervisor, whom she claimed had threatened her job when she tried to end the relationship and ultimately was terminated by her employer once she did so.  The plaintiff initially filed administrative complaints against her former employer with the Bureau of Labor and Industries (“BOLI”) and the U.S. Equal Employment Opportunity Commission (“EEOC”) and claimed she had text messages reflecting her attempts to ask her supervisor to stop the relationship, eventually faxing printed copies of the purported text messages to her attorney, which were forwarded onto BOLI.

Eventually, the plaintiff sued the defendant company and her former supervisor alleging Title VII gender discrimination and state law claims.  During initial disclosures, the defendant company requested that the plaintiff provide her supporting materials “in electronic form in their native format”, but she produced only the same print copies provided to BOLI and, after a second request for production, only one of her “four or five” cell phones.  The defendants retained a forensic examiner to inspect and analyze the one phone that was produced and he determined that many of the text exchanges for which the plaintiff provided printed versions had been fabricated.  At least 44 of the text messages that had been included in the print copies the plaintiff provided actually resided in the phone’s “unsent” folder and were interspersed with fragments of actual text conversations between the plaintiff and her supervisor.  Based on the evidence falsification determined by the forensic examiner, the defendants filed a motion for terminating sanctions.

Judge’s Ruling

Noting that the plaintiff “effectively has conceded” the forensic examiner’s qualifications as a forensic computer expert (never deposing him, “despite ample opportunity to do so”), Judge Acosta observed that “Lee’s only evidence consists of two short answers contained on a single page excerpted from her deposition, in which she simply denies, when asked, whether she falsified or fabricated text messages.”  As a result, Judge Acosta found that “the record overwhelmingly establishes that Lee fabricated the text messages in question.”

Moving on to the question of dismissal, Judge Acosta identified five factors to weigh, as follows: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” (Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995))  Finding all five factors to be met, Judge Acosta classified the plaintiff’s conduct as “willful” and stated: “Lee carefully and intentionally manipulated and interspersed Sims’s actual text messages with strategically crafted false text messages to lend support for her claims. She also failed to preserve her phones and withheld the native, electronic versions of the text messages, in all likelihood to conceal her wrongdoing.”  As a result, he granted the defendant’s motion for terminating sanctions and dismissed the plaintiff’s claims with prejudice.

So, what do you think?  Would the defendants’ case have been made without forensic examination of the cell phone?  And, did you get the little joke in the title of the post?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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