In Frazier v. Se. Ga. Health Sys., Inc., No. 2:21-CV-21 (S.D. Ga. March 1, 2024), Georgia District Judge Lisa G. Wood found that “Plaintiffs acted in bad faith, abused the judicial process, and committed a fraud upon the Court” by fabricating a video, so she dismissed the case with prejudice.

Case Discussion

In this medical malpractice case where the plaintiffs alleged that defendant Dr. Stevenson failed to remove foreign items from plaintiff Cedric Frazier’s nose after a medical procedure, the issue before the judge here was the authenticity of a video that was produced by the plaintiffs, which showed a mound of bloody materials in a kidney-shaped dish.

The plaintiffs asserted that they recorded the video during Mr. Frazier’s follow-up visit in Dr. Stevenson’s office a few weeks after the initial procedure. Both the parties and the Court referred to this as the “YouCut video” because it was created by Mr. Frazier using the YouCut video editing app to combine two separate original videos, which he claimed to have recorded on his cell phone.

After the plaintiffs submitted the YouCut video, they filed a second amended complaint, using the video as the sole evidence for their allegations. The defendants requested the original video files and associated metadata from Mr. Frazier’s phone to verify their authenticity. Although the plaintiffs did not produce the original videos, they did provide a screenshot of a purported original video, which purportedly displayed some of the video’s metadata. The Magistrate Judge then ordered a forensic examination of Cedric Frazier’s phone, but the defendants’ expert couldn’t locate the original video files to determine whether the YouCut video was authentic.

Following that initial dispute, Plaintiffs requested to inspect Suite 480 (where the original videos were purportedly taken) and have a videographer record the inspection. The Magistrate Judge granted their request, and on October 5, 2021, Plaintiffs conducted their walkthrough of Suite 480, with videographers present for the inspection for both the plaintiffs and defendants. The inspection revealed “significant discrepancies” between the features of the room in the YouCut Video and the room where the exam occurred.

Defendants filed a motion to dismiss the case due to plaintiffs’ fabricating a video. After an evidentiary hearing on the motion, the Magistrate Judge issued the Report, finding that the YouCut Video was indeed fabricated. He ultimately recommended the Court dismiss Plaintiffs’ suit with prejudice. Plaintiffs objected to three of the findings:

1. The case warrants the Court’s exercise of its inherent power to sanction.
2. Plaintiffs willfully fabricated the YouCut video.
3. Dismissal is a proper sanction.

Judge’s Ruling

Regarding the first objection, Judge Wood stated: “Plaintiffs argue that exercise of the Court’s inherent power is improper without finding that Plaintiffs violated a court order or procedural rule. And because the Magistrate Judge ‘did not make a finding of disobedience,’ Plaintiffs contend any sanctions based on the Court’s inherent power would be improper. Plaintiffs’ argument in this respect is wrong… And because ‘the concept of bad faith clearly embraces fabricating or destroying evidence and then lying about doing so,’ exercise of the Court’s inherent power is warranted in this case…Contrary to Plaintiffs’ argument, the conduct in this case—doctoring evidence—is ‘most often’ the cause for invoking the inherent powers doctrine.”

Regarding the second objection, Judge Wood stated: “As an initial note, Plaintiffs’ assertion that Defendants must prove when the YouCut Video was recorded neglects an important fact: Plaintiffs have failed to produce the original videos used to create the YouCut Video… Defendants must prove that Plaintiffs fabricated the YouCut Video. They do not have to prove when or where the YouCut Video was recorded. And as the Magistrate Judge found, Defendants have proven that Plaintiffs fabricated the YouCut Video because they have proven Mr. Frazier did not record the YouCut Video in Suite 480 on February 25, 2020. The material differences between the exam rooms in Suite 480 and the room in the YouCut Video provide the necessary clear and convincing foundation of evidence.”

Regarding the third objection, Judge Wood stated, referencing Rossbach v. Montefiore Med. Ctr. (where the plaintiff was found to have willfully fabricated an image of a text message exchange): “The present case shares pivotal similarities with Rossbach. Most importantly, the Rossbach court determined the image was fabricated largely based on visible indicators, and as previously discussed, the Magistrate Judge found the visible differences between the YouCut Video and the walk-through video to be crucial in his analysis… Plaintiffs’ argument that a jury should make factual determinations regarding the YouCut Video’s authenticity is unpersuasive. Where other courts have allowed a jury to make similar determinations, they have done so for reasons not present in this case. This case more closely resembles those where courts have concluded that evidence was fabricated and ordered dismissal sanctions without the assistance of the jury.”

So, Judge Wood granted the defendants’ motion and dismissed the plaintiffs’ case with prejudice for fabricating a video.

So, what do you think? Do you think we’ll see more cases in the age of generative AI where parties are fabricating a video? 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. Check out Kelly Twigger’s discussion of the case here!

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