Adverse inference

Adverse Inference Sanctions Among Several Issued By Court: eDiscovery Case Law

In Fast v. GoDaddy.com LLC, No. CV-20-01448-PHX-DGC (D. Ariz. Feb. 3, 2022), Arizona District Judge David G. Campbell issued several sanctions for plaintiff’s spoliation of, and failure to produce, several types of evidence in the case, including adverse inference sanctions, costs and fees and more.

Case Background

In this case involving claims for sex and disability discrimination regarding an employee of the defendant who was terminated, as early as May 2, 2018, while still employed at GoDaddy, Plaintiff started coordinating with co-worker Lee Mudro to gather instant messages from her work Slack account for use in potential litigation. Plaintiff confirmed her intent to sue in communications with Mudro on May 7 and, by early June, Plaintiff not only anticipated lawsuits against GoDaddy, but also understood that evidence gathering was underway on both sides. Despite this, the plaintiff contended that her duty to preserve did not arise until she retained an attorney to file the lawsuit in July 2020.

The defendants moved for Rule 37(e) sanctions, alleging that the plaintiff failed to take reasonable steps to preserve (1) an undetermined number of Facebook posts, (2) 109 unsent Facebook Messenger messages with Mudro, (3) the contents of her iPhone, (4) the contents of her @cox.net email account, and (5) Telegram Messenger messages with Mudro.

The defendants also moved for Rule 37(c)(1) sanctions for Plaintiff’s failure to produce (1) 487 Facebook Messenger messages between her and Mudro, (2) at least four covertly-made audio recordings of meetings with GoDaddy employees, and (3) emails between Plaintiff and Dr. Donald Rhodes.

Judge’s Ruling

Finding that “Plaintiff had a duty to preserve Facebook posts relevant to this suit starting in May 2018 and that “the deleted posts likely were relevant to this lawsuit”, Judge Campbell stated: “Plaintiff’s arguments that she deleted the posts because they contained incorrect information and she feared they would make it hard for her to get another job are unpersuasive. If Plaintiff was concerned about incorrect information, she could have archived the inaccurate posts. Doing so would have removed them from public view while preserving them for production in this lawsuit. Plaintiff clearly understood Facebook’s archive feature – she used it. By choosing instead to delete posts, Plaintiff consciously chose to make them permanently unavailable.”

ProSearch

As for the 109 unsent Facebook messages, all but one of them had been eventually produced – although, not until her response to the defendants’ motion for sanctions. As for the plaintiff’s claims that the remaining message was personal, Judge Campbell stated: “Plaintiff does not explain why, if she realized that she had erroneously sent a highly personal message to Mudro ‘minutes’ after it was sent, she waited two years to unsend it. For these and other reasons explained below, the Court finds Plaintiff’s explanation of the 11:57 message implausible.” As a result, he found that the plaintiff unsent that message with the intent to deprive the defendants of its use.

As for the plaintiff’s iPhone, Judge Campbell, rejecting the plaintiff’s argument that she “lacks sophistication” when it comes to technology (citing several instances where she noted her technical capabilities), found the plaintiff was “under a duty to preserve its contents, failed to do so, and the contents are now lost.” However, noting that “the Court has seen no other evidence suggesting the phone was not stolen”, Judge Campbell ruled: “The Court cannot conclude that Plaintiff failed to back up her phone with an intent to deprive Defendant of its contents in this litigation.” He also ruled that intent could not be proven regarding the deactivated cox.net email account either.

Given the indications that the plaintiff had expressed intent to communicate with Mudro via Telegram Messenger, Judge Campbell rejected her claims that it was likely the two never communicated via Telegram, stating: “The Court finds by a preponderance of the evidence that Plaintiff communicated with Mudro on Telegram Messenger, that she had a duty to preserve those communications, and that she failed to take reasonable steps to preserve them.”

As for intent, Judge Campbell stated: “Plaintiff…tried to conceal the existence of Telegram Messenger communications from Defendants…And in her tardy production of Facebook communications with Mudro, Plaintiff manually deleted the exchange that referenced her and Mudro’s communications on Telegram. She then unsent her side of the exchange to prevent Mudro from producing the same messages in response to Defendants’ subpoena. Plaintiff did not provide the Facebook messages referencing Telegram until compelled to respond to Defendants’ motion for sanctions, and yet by then the Telegram messages were gone.” As a result, he found intent to deprive regarding the Telegram messages.

As for the plaintiff’s failure to produce Facebook Messenger messages between her and Mudro, the audio recordings, and emails between her and Dr. Rhodes, Judge Campbell in each case found: “Sanctions under Rule 37(c)(1) are authorized”, calling the failure to produce the emails with Dr. Rhodes “one of the most troubling” categories.

Finding that “Plaintiff’s intentional conduct and the prejudice it caused Defendants warrant an adverse inference instruction”, Judge Campbell issued sanctions against the plaintiff, including: “an adverse inference jury instruction at trial based on (1) Plaintiff’s deletion of an unknown number of Facebook posts, (2) Plaintiff’s ‘unsending’ of the 11:57 message that conveyed a summary of her evidence, and (3) Plaintiff’s deletion of Telegram Messenger messages between her and Mudro”. He also stated: “Defendants will be permitted to inform the jury of Plaintiff’s undisclosed ‘redactions’ from her Facebook posts.”

In addition to the adverse inference sanctions, he “require[d] Plaintiff to pay some, and perhaps all, of Defendants’ attorneys’ fees and costs associated with preparing for and litigating the motion for sanctions…, the hearing on December 16, 2021, the supplemental briefing ordered by the Court (including, potentially, Defendants’ retention of a forensic evidence expert in connection with the supplemental briefing), and further discovery ordered by the Court in relation to this motion.” He also allowed the defendants to “conduct a forensic review of Plaintiff’s electronic devices” and “issue up to four additional third-party subpoenas.”

So, what do you think? Should the plaintiff have received adverse inference sanctions, or perhaps even worse?  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, an Affinity partner of eDiscovery Today. Catch Kelly’s discussion of this case on her #caseoftheweek discussion from last week here! And Craig Ball discussed it here!

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