“Civil Vigilantism” – Sanctions for Surreptitious “Self-Help” Investigation

Taken together, the following three cases demonstrate that surreptitious “self-help” to obtain evidence from an opponent outside of the discovery process, even if it occurs prior to commencement of an action, is – at a minimum – imprudent.

In Cruse, alleged hacking resulted in disqualification of counsel who used the fruits of the hack, plus federal civil claims for damages against the attorney and client. Glynn resulted in a finding of serious misconduct and monetary sanctions on the attorney and client who obtained data from someone still employed by the opposing litigant.  While the dismissal was vacated in Weaver, the appellate court squarely wrote that improper pre-litigation gathering of evidence could result in other sanctions.  In short, conduct that one Court called “civil vigilantism” can be sanctionable.

CRUSE v. CRUSE

An Oklahoma attorney was disqualified in a case between former spouses after the attorney allegedly received the ex-wife’s hacked photographs and other information.  See D. McKee, Attorney Disqualified From Hacking Case for Alleged Involvement (bloomberglaw.com)(Mar. 8, 2023).  Mr. McKee reported that:

The lawyer received the plaintiff’s privileged and confidential information from her client, and then attempted to use the information to leverage her client’s position in an annulment action, according to the plaintiff.

[Plaintiff] also said that [opposing attorney] McConnell-Corbyn jeopardized privileged information, including medical therapy notes, belonging to [plaintiff].

The case is Cruse v. Cruse, 2023 WL 2392737 (W.D. Okla. Mar. 7, 2023).  The court wrote: “Plaintiff alleges that Defendants [the ex-husband and his attorney] violated federal and state law by intentionally accessing her iCloud account without authorization and by downloading, photographing, and transferring images and videos that were stored in that account.”

In May 2021, Dr. Cruse filed a petition in state court to annul the marriage to Ms. Cruse.  The events at issue in the federal case followed shortly thereafter:

Plaintiff’s Complaint alleges that on or before November 3, 2021, after Defendants unlawfully obtained photos from, or took photos of items stored within, Plaintiff’s iCloud account, Dr. Cruse sent at least 16 of those photos to [his attorney] Ms. McConnell-Corbyn.

Dr. Cruse’s attorney then sent them to Ms. Cruse’s attorney by email.  Plaintiff alleged that some of the photos contained privileged communications.

In the Complaint, Ms. Cruse alleged violation of the Stored Communications Act, 18 U.S.C. §2701, et seq., the Computer Fraud and Abuse Act, 18 U.S.C. §1030, et. seq., conspiracy between Dr. Cruse and his attorney, and invasion of privacy.  See Case 5:22-cv-00181, ECF No. 1 (3/2/22).  She alleged that 58,658 images and videos were accessed and obtained without authorization, and also alleged that images were altered and deleted.  Id.  Among the images allegedly deleted were some that would have been used in Ms. Cruse’s civil assault case against Dr. Cruse.  Id., ¶61. Further, she alleged that this “highly offensive, long-term fishing expedition” accessed 308 private notes.  Those allegedly included private therapy and medical notes, as well as photos of medical records.^[1]

The allegations involving Dr. Cruse’s attorney followed.  In ¶47, Ms. Cruse alleged that the photos were sent to her attorney by Dr. Cruse’s attorney with “threats” that Ms. Cruse had “lied under oath” and “we will be producing as photos and videos certain photos that I am enclosing with this letter.”  It is alleged that “Ms. McConnell-Corbyn used unlawfully obtained information her client provided to her to threaten and intimidate Sheri Cruse.” Compl., ¶47.  Allegedly, Dr. Cruse’s attorney threatened to “take them to the DA” to bring perjury charges.  Id., ¶53.

The court wrote:

Plaintiff … alleges that Ms. McConnell-Corbyn “furthered [Defendant’s] unlawful acts and illegal objective” by way of her own handling of those photos.  Defendant does not dispute that Ms. McConnell-Corbyn received and then transmitted certain disputed photographs. [citations omitted].

The court concluded that these facts made Dr. Cruse’s attorney a “likely” witness. It held that the attorney was disqualified and wrote:

Having considered the parties’ arguments, the case record, and relevant circumstances, the Court concludes that Ms. McConnell-Corbyn’s continued representation of Defendant in this case would result in the violation of Rule 3.7 of the Oklahoma Rules of Professional Conduct. In so concluding, the Court does not find that Ms. McConnell-Corbyn has engaged in any misconduct or that there has been any harm imposed upon Plaintiff that is not fully remedied by Ms. McConnell-Corbyn’s withdrawal from this case. Further, the Court expressly declines to reach Plaintiff’s assertions regarding Ms. McConnell-Corbyn’s alleged possession of confidential information or violation of any other Oklahoma Rule of Professional Conduct.

In short, Dr. Cruse’s alleged improperly obtaining ESI, providing it to his attorney, who then used it in negotiations with Ms. Cruse’s attorney, led to the disqualification of Dr. Cruse’s attorney.

GLYNN v. EDO CORP.

Courts have recognized that sanctions may be imposed for improperly obtaining evidence.  Fayemi v. Hambrecht & Quist, Inc., 174 F.R.D. 319, 325 (S.D.N.Y. 1997).

Maryland decisions have long condemned self-help instead of rules-based discovery.  Courts have said that the proper method to obtain information is to use the discovery process.

For example, in Glynn v. EDO Corp., 2010 WL 3294347 (D. Md. Aug. 20, 2010)(Motz, J.), Glynn sued IST on employment-related claims. Glynn alleged that he was terminated for whistleblowing. IST alleged that the termination was for misconduct.

Glynn and his attorneys (“TELG”) surreptitiously obtained information about IST from a friend who still worked for IST.  Judge Motz wrote:

After his termination, Glynn communicated regularly with James Martin, a friend and then-current IST employee…. Glynn’s email conversations with Martin often concerned their mutual distaste for IST management, Glynn’s efforts to work as an engineer designing C–IEDs, and Martin’s plans to leave IST. Amidst these discussions, Martin sent Glynn internal IST documents and emails, some of which Glynn forwarded to [Glynn’s attorney] TELG. Martin also began communicating with and providing information to TELG directly. [emphasis added].

The Court held that the improper receipt of internal IST documents merited sanctions: “[T]here is no doubt Glynn and TELG engaged in serious misconduct in this litigation.”

The Court wrote: “I will impose a $20,000 sanction against Glynn and TELG to deter future misconduct and mitigate any prejudice suffered by IST.”  The Court described some of the documents as “trivial.”  However, some of the documents were not “trivial” and included information about a government investigation policy.  One was marked “CONFIDENTIAL.”  Importantly, however, the Court wrote:

The parties dispute whether the information listed above is proprietary, confidential, or protected by the attorney-client or work product privileges. I need not resolve these issues because, regardless of their merits, I believe it was inappropriate for Glynn and TELG to surreptitiously acquire these internal IST documents outside of the normal discovery channels. It was not for Glynn and TELG to unilaterally decide whether the documentation Martin was tunneling to them from IST computers was proprietary, confidential, or privileged. Rather, those decisions are best resolved through the formal discovery process. [emphasis added].[2]

WEAVER v. ZENIMAX MEDIA, INC.

The decision in Weaver v. ZeniMax Media, Inc., 175 Md. App. 16 (2007), cert. denied, 401 Md. 174 (2007), supports the proposition that such self-help is improper, although holding that a sanction of dismissal was too severe.

The trial court wrote that Mr. Weaver had a rocky relationship with his employer, ZeniMax. He went into the general counsel’s office and looked in a binder containing other employment agreements. 2004 WL 2755852, at *1 (Md. Cir. Ct. Sept. 3, 2004), vacated, 175 Md. App. 16 (2007).  “Surprised” and “[a]ngered by what he had read Weaver testified that he went to the office that weekend and accessed Altman’s office without authorization using a master key. Weaver’s testimony regarding the exact details of this incursion is not reliable as his story on this subject has changed a number of times. He has, under oath, both denied this conduct and rationalized it with a variety of explanations. As such, the Court has a hard time taking his current testimony at face value.”  Id. at *2.

The circuit court continued:

Weaver first improperly accessed Altman’s office and logged onto Altman’s computer using Altman’s personal user id and login during the weekend of September 29, 2001. Weaver has admitted that he ran searches on Altman’s email files looking for any information which included Weaver’s name and other information that Weaver felt pertinent to his personal situation. We cannot know all that he saw, because even Weaver admits he did not print out all the emails he saw during this unauthorized foray. Business records from Weaver’s attorney, Mr. Ronald Early, however, demonstrate that Weaver first contacted Mr. Early on Monday, October 1, 2001. Documents eventually produced by the plaintiff after his misconduct was brought to light during deposition reveal that Weaver again improperly entered Altman’s office on Tuesday, October 2, 2001, and again accessed his computer using Altman’s identifiers and without Altman’s knowledge or permission.

These same documents demonstrate that Altman’s office is not the only office Weaver entered improperly; documents printed under the identifiers of both Mr. Lesher and Ms. Cindy Tallent, ZeniMax’s Chief Financial Officer, were subsequently produced by the plaintiff. Furthermore, some of these documents bear dates revealing that Weaver accessed the offices of others over a course of several months until ZeniMax changed the office locks in May 2002. Plaintiff’s counsel during closing arguments conceded that Weaver had improperly accessed Altman’s computer “four or five times” in total.

Ultimately, Weaver has admitted under oath to entering the offices of other ZeniMax executives without their permission or authorization; accessing their computers under their own logins; searching and scanning their entire email caches for any material relating to his personal interests; printing out hundreds of these emailed documents, not for corporate reasons, but for personal purposes; and lastly, taking a confidential document from the office of Altman. Weaver … has also testified that the reason he repeatedly engaged in this misconduct, hid his actions and lied under oath about these deeds was to protect himself from Altman and ZeniMax.

It appears that Mr. Weaver intruded into arguably privileged information.  The trial court wrote:

Lastly, at least one of the documents improperly viewed and retained by Weaver was relevant to the underlying litigation and would likely have been appropriately deemed privileged, but for its disclosure through the plaintiff’s illicit and improper actions. The document to which we refer is a copy of Weaver’s employment contract with hand-written marginalia authored by Mr. Altman. At the hearing Weaver testified that he took this document from the trash can in Altman’s office, though his assertions specifically regarding this document have been particularly prone to reassessment and rationalization. The comments written on the contract copy relate to the clauses that Altman believed should be changed in Weaver’s upcoming contract. As the underlying matter in this litigation would revolve on the correct interpretation of Weaver’s employment contract, Altman’s notes and conclusions as the CEO would be highly probative of ZeniMax’s position regarding key contract language. Unfortunately for Mr. Weaver, these marginalia clearly appear to be written communications between a client—here ZeniMax, through Mr. Altman as its representative—with its attorney—here Mr. Lesher acting in his corporate capacity as ZeniMax’s General Counsel. As such, this document ought to have remained confidential and likely would have but for the wrongful conduct of Mr. Weaver. [emphasis added].

The circuit court held that this was a case of first impression.  It held that “it is absurd to draw an arbitrary line between conduct that occurs before the date a suit is filed and conduct that occurs afterwards. Such a rule invites the unscrupulous litigant to engage in willful misconduct prior to a suit’s filing and not risk dismissal. Justice should not seek to reward the illicit actions of a sophisticated thief by punishing his conduct less severely than an inept one.”  Id. at *13.[3]

After an exhaustive 16-page analysis, the trial court granted defendant ZeniMax’s Motion for Sanctions Seeking Dismissal of the Plaintiff’s First Amended Complaint Due to Discovery Abuses.  It wrote:

This is quite simply civil vigilantism regardless of when the conduct began. It is the act alone that offends justice and the Court cannot rationalize such a perversion of its process because the initial actions first occurred prior to the filing of a suit. [emphasis added]…. Even viewed in a light most favorable to the plaintiff, Weaver’s conduct clearly constitutes an unauthorized and improper intrusion into the offices, computers, files, email accounts, and trash bins of at least three ZeniMax employees. Alone this improper access would be extraordinary enough, but plaintiff compounded his error by printing, copying, and retaining a voluminous number of these documents, and by referring to his ill-gotten gains both before and during the course of this litigation.[4]

However, the appellate court vacated the judgment. 175 Md. App. 16 (2007), cert. denied, 401 Md. 174 (2007).  The appellate court did not disagree with the circuit court’s factual recitation.  In fact, it wrote that, in deposition, “[a]t first, Weaver invoked the Fifth Amendment, but later he revealed that he had, on multiple occasions in 2001 and 2002, used his ‘master key’ to enter Altman’s and Lesher’s offices outside of normal business hours. He used Altman’s computer to log into Altman’s e-mail account and searched for e-mails related to their disagreements and Weaver’s future employment with ZeniMax.”

Faced with a litigant who, shortly after he hired counsel,[5] had surreptitiously and repeatedly entered offices at night and on weekends, accessed computers, lied to other ZeniMax employees, and “initially lied in his deposition,” the appellate court wrote that:

Based on Maryland case law recognizing the inherent authority of trial courts to sanction litigants for improper conduct, and finding guidance in federal case law applying such inherent authority to prelitigation gathering of evidence, we are satisfied that a circuit court has inherent authority to sanction conduct like Weaver’s in this case.

Id. at 46 (emphasis added).

However, the remedy must be limited to safeguarding the Court’s ability to properly adjudicate the case. The Court held that dismissal was too severe:

We are not persuaded that Weaver’s conduct rises to the level of the conduct in those cases with regard to the relationship between his conduct and the merits of the case, or with respect to the prejudice to ZeniMax. It is more like Fayemi, where the documents obtained by the plaintiff were discoverable and did not give the plaintiff an unfair advantage in the litigation.

Recognizing that not all of the documents obtained by Mr. Weaver were discoverable, the appellate court then added:

In this case, most of the relevant documents obtained by Weaver were discoverable and were produced in discovery after Weaver revealed that he already possessed them. Some documents, including the draft contract, although relevant, were likely not discoverable. In our view, the documents obtained by Weaver outside the discovery process did not prejudice ZeniMax’s defense of the case or the court’s adjudication of the case to the degree that outright dismissal of Weaver’s claims was warranted. [emphasis added].

The Court held that the knowledge gained from reading the emails did not cause substantial prejudice to ZeniMax or the judicial process.  Implicitly conceding that the Court did not know what Mr. Weaver saw and did not print, the Court added:

As he was seeking to obtain evidence  regarding his disputes with ZeniMax executives, it was in his interest to print and copy all materials that he believed to be helpful. To that end, he would have printed or copied any materials that appeared relevant to him.

It added:

The [trial] court was obviously concerned about any unfair advantage Weaver could gain from his prelitigation investigation that was not revealed by the documents that had been produced, i.e., “seen[,] but not hard copied,” and any “information that Weaver may have retained in his memory, from which he presumably could continue to benefit were the case to come to trial on the merits.”

We are not persuaded that the risk of unfair advantage is as great as the circuit court perceived. If ZeniMax or the circuit court suspect that Weaver is using information that he gained through improper prelitigation conduct, but which is not reflected in the documents produced, the court may conduct an inquiry into the matter and address the issue at that time.

The ultimate holding was:

Under the circumstances of this case, we are persuaded that the circuit court’s dismissal of Weaver’s case was an abuse of its discretion, as his conduct and the implications of that conduct are not so egregious as to warrant the ultimate sanction. Accordingly, we shall vacate the judgment of the circuit court and remand the case for further proceedings.

Id. at 48 (emphasis added).  A docket entry dated November 6, 2008, reflects a joint stipulation of dismissal with prejudice.  The case was set for trial the following month.[6]

_____

[1] The Complaint describes the forensic process used by the plaintiff to uncover the information for her allegations of fact.

[2] In addressing the appropriate sanction, the Court wrote: “And to the extent that Glynn and TELG obtained privileged information which would not have been disclosed in discovery, IST has not explained exactly how it was prejudiced by the acquisition of that information.”  Glynn was factually distinguished in Jones v. Concerted Care Grp., 2022 WL 11949026, at *2 (D. Md. Oct. 20, 2022)(“facts here are demonstrably different”). In Jones, plaintiff had her laptop at termination, attempted to return it three times, and then her attorneys imaged it as part of their duty to preserve.  There was no “improper receipt” of the opponent’s information on these facts.

[3] The circuit court wrote that Mr. Weaver “confined his illicit incursions into the offices of the other ZeniMax executives to nights and weekends when his activities were less likely to be detected. He logged onto the computers of his colleagues under their own personal logins despite the fact he had administrator privileges on the network.”

[4] The trial court also awarded attorneys’ fees and granted summary judgment in favor of Mr. Weaver on ZeniMax’s counterclaim.

[5] Mr. Weaver’s attorney testified that “he found out about Weaver’s activities at the same time as ZeniMax—during Weaver’s deposition.”

[6] In Fayemi, the civil vigilantism was not sanctioned due to the misconduct of the other party.