In Gunter v. Alutiiq Advanced Security Solutions, LLC, 2022 WL 1139875 (D. Md. Apr. 18, 2022), a pro se plaintiff alleged various employment discrimination claims. After defendant provided forensic testimony, the plaintiff was sanctioned under Rule 41(b), Rule 37(e), Rule 26(g), and the Court’s inherent power, for fabricating and failing to produce text messages.
Initially, the Court conducted an off-the-record conference “in the middle of” plaintiff’s deposition and, the next day, it ordered that plaintiff produce his cell phone – “that very day” – for a forensic examination.
The forensic “examination revealed six previously unproduced text messages dated from August 31, 2019 through September 5, 2019 which address the circumstances of Gunter’s termination.” A few days later, plaintiff’s second set of attorneys moved to withdraw. The motion was granted.
Defendant moved for sanctions and dismissal contending that plaintiff falsified several text messages. Defendant sought and received permission for additional forensic evaluation of the phone. After that was done, the Court conducted an evidentiary hearing and heard testimony from J. Christopher Racich of Vesigant LLC, and other witnesses. Vesigant’s motto is: “If it exists, it can be found.”TM
Fed.R.Civ.P. 41(b) authorizes a motion for involuntary dismissal when a plaintiff fails to comply with the Rules or a court order. Rule 37(e) provides for sanctions for the loss of ESI and the Court said that the factors to apply were similar to Rule 41(b). It also noted that it has the inherent power to dismiss a case, writing:
The Fourth Circuit has recognized that “when a party deceives a court or abuses the process at a level that is utterly inconsistent with the orderly administration of justice or undermines the integrity of the process, the court has the inherent power to dismiss the action.”
The Hon. Richard D. Bennett wrote that, after permitting additional discovery and hearing testimony from Mr. Racich, “[t]his Court concluded on the record that the printout text messages Gunter produced in discovery were in fact fraudulent.” Judge Bennett described the conduct as “egregious.” The Court wrote: “Plaintiff bears a high degree of culpability.” Fabricating evidence justifies finding a fraud on the Court. Id. at n. 7.
However, the Court determined that dismissal was not the sanction to impose. It wrote:
[The Court will] preclude Plaintiff from relying on those messages both at the motions stage and at trial. In addition, [defendant] Alutiiq will be permitted to introduce both the fraudulent and the authentic versions of the text messages to attack Plaintiff’s credibility before the finder of fact. This Court notes that whether it analyzes this matter under Rules 41(b) and 37(e) or this Court’s inherent powers to sanction litigation misconduct, this Court is required to consider whether sanctions short of dismissal will be sufficient. In this case, this Court concludes that dismissal would be too harsh a sanction, especially in light of the preference of the United States Court of Appeals for the Fourth Circuit that cases be decided on their merits. [Citation omitted]. Plaintiff is admonished, however, that further misconduct in this case may result in more severe sanctions, up to and including dismissal. [emphasis added].
Additionally, the Court ruled that:
Plaintiff must reimburse Alutiiq for the cost of the forensic examination this Court ordered on September 10, 2021. In addition, this Court concludes that Plaintiff must reimburse Alutiiq for the cost of engaging Mr. Racich to investigate the July 29, 2019 and August 20, 2019 fraudulent text messages. The United States Supreme Court has recognized that courts have inherent powers that allow them to impose sanctions when a fraud has been practiced upon the court.
It directed the defendant to file a fee petition and plaintiff to submit evidence of his ability (or inability) to pay.
UPDATE – see Doug Austin, Fraudulent Text Messages Lead to Case Dismissal (ediscoverytoday.com)(Apr. 14, 2023).