In Gunter v. Alutiiq Advanced Sec. Sols., LLC, No. 1:20-CV-03410-JRR (D. Md. March 2, 2023), Maryland District Judge Julie R. Rubin adopted in part and modified in part Magistrate Judge J. Mark Coulson’s Report and Recommendation for sanctions, ordering plaintiff to pay $10,000 to defendant as partial reimbursement of costs associated with the engagement of forensic and expert witness services and dismissing the action with prejudice for the plaintiff’s production of fraudulent text messages.

Case Discussion

In this case involving various employment-related claims, defendant alleged that plaintiff produced fraudulent text messages in support of his action and spoliated other text messages. The matter was referred by presiding Judge Richard D. Bennett to Magistrate Judge J. Mark Coulson for resolution of all discovery disputes and Judge Coulson issued a Report and Recommendation for this court’s consideration in ruling on the defendant’s motion.

Judge Coulson found the authenticity of Plaintiff’s text messages implausible but concluded that “there is insufficient forensic evidence to allow the Court to conclude there was fabrication. Proof or implication of such fabrication would require evidence akin to verification that the metadata from the recipient’s phone rules out any deletion or manipulation, and, as to Plaintiff’s phone, the time, date, and circumstances of the deletion, the lack of damage to the cell phone, or the true data over-writing practices of the cell phone carrier.”

During the plaintiff’s deposition, defense counsel identified several inconsistencies and incompletions in the text messages produced by plaintiff and advised him on multiple occasions that he was “under oath” and “subject to the rules of perjury”, yet plaintiff continued to deny any changes to the text messages. The plaintiff also suggested that Verizon erased the missing text messages and also that covert government agents were responsible. While still on site at plaintiff’s deposition, the defendant requested a forensic examination of the plaintiff’s phone, which was granted. Three days later, Plaintiff’s counsel moved to withdraw their appearance from the case.

Approximately two months following Judge Coulson’s Report and Recommendation, Defendant filed a status report with the court attaching the report of its expert forensic examiner, which opined that Plaintiff had “targeted for deletion” the missing text messages and that certain text messages Plaintiff relied on to support his claims were “not genuine and were altered.” Fortified with the expert opinion, Judge Bennett found that Plaintiff produced and relied upon “fraudulent” text messages dated July 29, 2019 and August 20, 2019, in support of his claims. Judge Bennett found that Plaintiff’s fraudulent conduct was “egregious”, but exercised his discretion not to dismiss Plaintiff’s case, instead choosing to constrain Plaintiff’s presentation of evidence at trial. The action was then transferred to Judge Rubin.

Judge’s Ruling

Upon evaluating the record, Judge Rubin stated: “the court came to appreciate that the fraudulent text messages that Plaintiff relied upon to state his claims in the Complaint, produced in discovery, and then testified at deposition were complete and genuine, go to the heart of the merits of Plaintiff’s claims (and Defendant’s defenses). The intentional and egregious nature of Plaintiff’s conduct, which demonstrates a disregard of the Federal Rules of Civil Procedure and a willingness to commit fraud on the court to prevail and receive an award of monetary damages, not to mention the resultant material injurious effect upon Defendant, shocked the conscience of the court – so much so that the court questioned whether it could, in good conscience, submit any of Plaintiff’s evidence or testimony to a jury. In other words, Judge Bennett exercised his discretion, as was his entitlement, to allow Plaintiff to proceed to prove his case constrained by the conditions described at ECF No. 67. But the undersigned was given grave pause to consider whether it could, as the gatekeeper of evidence and steward of the case, continue along the same path.”

Referencing the forensic examination, Judge Rubin also stated: “the court finds by clear and convincing evidence that the text messages described above at ECF Nos. 50-2 and 50-4…are not genuine. They are, in the words of Judge Bennett, ‘in fact fraudulent.’ The court finds clear and convincing evidence that Mr. Gunter intentionally and knowingly created false, fraudulent documents on which he relies to state and prove his claims to this court, and which he produced in discovery for that purpose. Further, the court finds by clear and convincing evidence that Plaintiff engaged in the intentional, wholesale spoliation (i.e., deliberate deletion and failure to produce) of six text messages dated August 31 to September 5, 2019.”

As a result, Judge Rubin stated in dismissing the case due to the plaintiff’s production of fraudulent text messages: “the court finds that dismissal of this action with prejudice is the appropriate sanction, and that no less drastic sanction is adequate or appropriate.” The plaintiff was also ordered to pay $10,000 to the defendant as partial reimbursement of costs for the forensic examination.

So, what do you think? Are you surprised that it took this long to dismiss the case over the production of fraudulent text messages? Please share any comments you might have or if you’d like to know more about a particular topic.

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