STEPHEN J. MURPHY, III, District Judge.
On April 2, 2018, after nearly six months of discovery, Plaintiff Jennifer Carroll-Harris filed her second amended complaint and alleged that Defendant failed to accommodate her disability, created a hostile work environment, and retaliated against her. ECF 23. The parties stipulated to four extensions of discovery. ECF 30, 35, 41, 46. During discovery, Defendant filed a motion to compel and a motion to dismiss certain claims for failure to comply with discovery orders. ECF 20, 32. The Court also conducted three telephonic status conferences with the parties. Then, on March 15, 2019, Defendant filed a motion for sanctions. ECF 48. Plaintiff filed two responses without explaining the duplicate filing. ECF 49, 50.
Plaintiff alleged that her employer, a hospital, failed to accommodate her disability, created a hostile work environment, and retaliated against her. See ECF 23, PgID 201-08. During discovery, Plaintiff produced emails related to her attempts to remedy the situation. One disclosure included three emails. Subsequent disclosures included three substantially similar emails with altered language.
First, on October 3, 2013, Plaintiff sent an email complaining about radio noise in her work area ("October Email 1"). In relevant part, the email stated:
ECF 48-10, PgID 345. The second version of the email ("October Email 2") stated:
ECF 48-14, PgID 351. As Defendant notes, the second email contained the following changes to the email's language:
During her November 15, 2018 deposition ("November Deposition"), Plaintiff testified that she sent the October Email 2 to Charles Lawrence. ECF 48-18, PgID 435 (noting the exhibit and saying "this is what I sent to Charles Lawrence"). But then, during her March 6, 2019 deposition ("March Deposition"), Plaintiff testified that October Email 1 "was for sure sent." ECF 48-17, PgID 378 (responding "yes" to the question of whether deposition exhibit N was for sure sent); id. at 377 (describing that exhibit N included Bonnie Thomas's name in the "to" line). Also, Plaintiff contradicted her November Deposition and stated that she was unsure whether the October Email 2 was sent. Id. at 377-78 (describing exhibit M and stating she did not know whether it was sent). Finally, Plaintiff represented that the changed language was simply her notes. See id. at 377 (describing part of the emails as "maybe just the note part"), 378 (stating "[t]his may be the note part I attached" to the email).
Second, on July 15, 2014, Plaintiff emailed an Equal Employment Opportunity ("EEO") counselor, Lydia Ward, to discuss the EEO process ("July Email 1"). In relevant part, the email stated:
ECF 48-12, PgID 347. The second version of the email ("July Email 2") stated:
ECF 48-15, PgID 352. As Defendant notes, the second email contained the following changes to the email's language:
During her November Deposition, Plaintiff stated that she wrote the July Email 2 to Lydia Ward. ECF 48-18, PgID 442. During her March Deposition, Plaintiff stated that one email was her "note" related to an EEOC proceeding. ECF 48-17, PgID 374.
Third, on August 19, 2014, Plaintiff contacted her supervisor, Tamika Ricumstrict, about disability accommodations ("August Email 1"). In relevant part, the email stated:
ECF 48-13, PgID 348. The second version of the email ("August Email 2") stated:
ECF 48-16, PgID 353. As Defendant notes, the second email contained the following changes to the email's language:
During her November Deposition, Plaintiff acknowledged August Email 2 and explained its contents. ECF 48-18, PgID 446-47. During her March Deposition, Plaintiff represented that August Email 2 "may have been" her note from "doing an EEOC exercise where [she] put in what it says to get an outcome." ECF 48-17, PgID 380. She further stated it was not sent. Id. at 381.
The Court may issue sanctions if a party disobeys a discovery order. Fed. R. Civ. P. 37(b)(2)(A). "[D]ismissing the action or proceeding in whole or in part" is a permissible sanction. Fed. R. Civ. P. 37(b)(2)(A)(v). The Court also possesses the inherent power to sanction litigants for bad-faith and fraudulent conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991). The Court's inherent powers allow it "to protect the due and orderly administration of justice and maintain the authority and dignity of the court." Bowles v. City of Cleveland, 129 F. App'x 239, 241 (6th Cir. 2005) (internal marks and quotation omitted).
The Court considers four factors when deciding whether to dismiss a case as a Rule 37 sanction:
Harmon v. CSX Transp., Inc., 110 F.3d 364, 366-67 (6th Cir. 1997) (internal marks and quotation omitted). Whether to dismiss a case as a discovery sanction is entrusted to the Court's discretion. See Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (noting that "[a] district court must be given substantial discretion" when managing its docket and then applying the abuse-of-discretion standard).
The Court must determine whether a sanction is appropriate and, if so, which sanction to impose. The Court will not address the merits of Plaintiff's substantive claims.
Willfulness, bad faith, or fault require "a clear record of delay or contumacious conduct." Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (quoting Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997)). "Contumacious conduct refers to behavior that is `perverse in resisting authority' and `stubbornly disobedient.'" Id. at 704-05 (quoting Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 737 (6th Cir. 2008)). A party's conduct "must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct on those proceedings." Id. at 705 (quoting Tung-Hsuing Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005)).
Defendant argues that Plaintiff fabricated the emails. Plaintiff responds in three general ways: (1) the "fabricated versions [of the emails] are nothing more than Plaintiff's personal notes to the original documents," (2) the changes do not impact "the evidentiary content of the original documents," and (3) the modified versions were disclosed in response to the Defendant's discovery requests. ECF 50, PgID 595-96; see also id. at 586-87.
Plaintiff testified that the changed emails were here "notes." But nothing in the disclosures supports her characterization. For example, the emails all include a heading with a date and time, the subject line, the name of the sender, and the name of the recipients. Compare, e.g., ECF 48-10 with 48-14. The alleged "notes" are not marked on the body of the original emails, but completely replace portions of the emails without explanation or identification. Compare id.; see also supra "Background" Parts I-III. The Court cannot conceive of a reason why Plaintiff would disclose the emails with no annotation except to try to introduce falsified information into the record. And, even if Plaintiff's failure to identify the disclosure was inadvertent, the conduct demonstrates a reckless disregard for the effect of her conduct on the proceeding.
Oddly, Plaintiff also argues that, after reviewing an exhibit, she "made notes to refresh her recollection to clarify the word accommodation as it refers to microphone." ECF 50, PgID 586. She avers that she made the "note, to assist in remembering the event." Id. at 592; id. at 593-94 ("The fact that Plaintiff made personal notes to [the original emails] . . . noting her reaction, recollection, and opinion does not in any way alter the original documents.") (emphasis added), id. at 596 (the changes are "the Plaintiff's comments, personal thoughts, and her reactions to the Government not accommodating her disability"). But there are no personal thoughts, reactions, or opinions included in the alterations. And Plaintiff testified that she made the notes as part of an EEOC exercise, not to refresh her recollection or as a memory device after or during her deposition. See, e.g., ECF 48-17, PgID 374 (referencing her note taking for the EEOC exercise). Plaintiff therefore presents an argument that is unsupported by her testimony or by other record evidence.
Plaintiff also argues that "[n]othing in her note changed the evidentiary context of" the exhibits. ECF 50, PgID 592. Plaintiff's assertion is unpersuasive. Her changes did alter the language of the original documents. See supra "Background" Parts I-III. For example, the changes to the August 2014 emails change their evidentiary content. In August Email 1, Plaintiff stated: "I do not need changes at this time, but I do need cooperation to utilize my accommodations." ECF 48-13, PgID 348. In August Email 2, Plaintiff states "I do need accommodations and I do need cooperation to utilize speech recognition." ECF 48-16, PgID 353 (emphasis added). The alteration changes the content of what Plaintiff communicated to her employer, which would affect the Court's or a jury's analysis of her failure-to-accommodate claim.
Even if the changes did not impact the emails' evidentiary weight, the Court could still find that Plaintiff's conduct was willful, in bad faith, or her fault. "A party's willingness to fabricate evidence bears on character and credibility, which often [are] broadly at issue in a given case." Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d 1174, 1181 (10th Cir. 2009). Because willful fabrication of evidence "commits a fraud on the court," it would be strange if the "sanction of dismissal depended only on the falsehood's relevance to the parties' claims, and failed to account for the act's interference with the judicial process." Id.
In her response brief, Plaintiff argues that the Government did not include a complete disclosure of the August 2014 emails. ECF 50, PgID 590 ("The complete Exhibit O [referencing the deposition exhibit designation] which includes the missing page as to Ricumstrict is attached."). Plaintiff includes the email as an exhibit. See ECF 50-12. The emails bear the Bates stamp numbers PLA-00191a-b and PLA-00192. See id. But Plaintiff never produced documents with those Bates numbers. See ECF 51-1, PgID 679-80 (declaration of Defendant's paralegal specialist); see also id. at 685 (screenshot of the files disclosed by Plaintiff). Plaintiff's appeal to extra-record evidence demonstrates her general disregard for how her conduct during discovery negatively impacts the Court's proceedings and Defendant's ability to defend the case.
Plaintiff's conduct demonstrates "a reckless disregard for the effect of [her] conduct on [the Court's] proceedings." Carpenter, 723 F.3d at 705 (quoting Tung-Hsuing Wu, 420 F.3d at 643). Plaintiff testified that the modified emails were simply her "notes," but she failed to identify when she made the changes or explain why the "notes" possessed nearly identical characteristics to the originals. Moreover, her disclosure failed to note that the email contained altered language. The Court therefore determines that Plaintiff's conduct was willful, done in bad faith, or her fault. The first Harmon factor weighs in favor of sanctioning Plaintiff.
Plaintiff's disclosures prejudiced Defendant and the legal system generally. First, Defendant has "been put to enormous additional effort and expense to ferret out plaintiff's lies and to double check every piece of information." Garcia, 569 F.3d at 1179. "[S]ubmission of falsified evidence substantially prejudices an opposing party by casting doubt on the veracity of all of the culpable party's submissions throughout litigation." Id. at 1180. Second, Defendant was required to reopen discovery, to retake Plaintiff's deposition, and to file a motion for sanctions. Third, Plaintiff's conduct delayed the case. See, e.g., ECF 44 (notice from Defendant requesting a status conference prior to resetting dates because of the discovery issues presented by the case); see also ECF 48, 50, and 51 (briefing on a motion for sanctions immediately before the dispositive motion deadline). Fourth, Plaintiff's conduct is "prejudicial to the system of civil justice generally [because] it involved a fraud on the court." REP MCR Realty, L.L.C. v. Lynch, 363 F.Supp.2d 984, 1012 (N.D. Ill. 2005).
Plaintiff responds that "[a]ny prejudice to the Government as to Plaintiff's use of her personal notes was created by the Government's misinterpretation of the use of Plaintiff's notes." ECF 50, PgID 597. Plaintiff fails to address the prejudice described above. The second Harmon factor therefore also weighs in favor of sanctioning Plaintiff.
The Court did not warn the parties that producing falsified discovery documents could lead to a sanction. But no single factor is dispositive. Barron v. Univ. of Mich., 613 F. App'x 480, 484 (6th Cir. 2015). And the Court finds that a warning is not appropriate here.
A district court may abuse its discretion by dismissing a case as a sanction without first imposing an alternative sanction. See Patterson v. Twp. of Grand Blanc, 760 F.2d 686 (6th Cir. 1985); see also Barron, 613 F. App'x at 484 (noting positively that the district court imposed a financial sanction prior to dismissal). But neither Patterson nor Barron apply here. Both cases involved a party that failed to disclose documents.
Here, Plaintiff disclosed altered documents without explanation. Thus, rather than simply missing a discovery deadline, Plaintiff affirmatively produced misleading discovery documents. When a party is willing to submit altered documentation in discovery, an additional warning would be superfluous. Moreover, Plaintiff entirely failed to address whether the Court should provide her a warning. See ECF 50, PgID 597-98 (Plaintiff's response addressing Harmon's third factor and lacking relevant arguments). The third Harmon factor therefore weighs in favor of a sanction.
Plaintiff argues that "the sanction of dismissal of Plaintiff's case is inappropriate," but fails to identify an alternative. Id. at 599. Regardless, a less drastic sanction is not appropriate here. Three less drastic sanctions the Court could consider include fining Plaintiff, excluding the evidence, or dismissing the claim to which the evidence relates. The alternatives are insufficient.
First, fining Plaintiff would inadequately remedy the harm to the public's interest in preserving the integrity of the courts and would inadequately deter potential future misconduct. Nor does a fine sufficiently address Defendant's concern about the veracity of other documents disclosed by Plaintiff.
Second, excluding the evidence is also an insufficient sanction. Were the Court to merely exclude the problematic emails, litigants could "infer that they have everything to gain, and nothing to lose" by manufacturing evidence. Garcia, 569 F.3d at 1180 (quoting Pope v. Fed. Express Corp., 138 F.R.D. 675, 683 (W.D. Mo. 1990)).
Third, dismissing the claim to which the evidence relates does not account for the wrongdoing. Despite her misconduct, Plaintiff would be able to continue with two of her three claims. The sanction could create "an incentive for a plaintiff, who has brought multiple claims, to try to fraudulently bolster one of her claims because[,] if caught, she could always litigate the other claims." Neal v. IMC Holdings, Inc., NO. 1:06-CV-3138-WSD/AJB, 2008 WL 11334050, at *6 (N.D. Ga. Oct. 20, 2008), adopted by 2009 WL 10669622 (N.D. Ga. Mar. 31, 2009).
Thus, when a party fabricates discovery, "the interests of the judicial system militate strongly in favor of dismissal of the suit so as to deter all litigants from such misconduct in the future." REP MCR Realty, 363 F. Supp. 2d at 1012 (collecting cases). The fourth Harmon factor therefore weighs in favor of a sanction of dismissal, particularly. The Court will not impose lesser sanctions and will dismiss Plaintiff's claims.
This is a final order and closes the case.
Defendant responds that he identified two additional fabrications produced by Plaintiff during discovery. See ECF 58. Plaintiff cannot respond to the allegations because they were raised in a response to a sur-reply. The Court will therefore not address them specifically. But, the exhibits attached to Defendant's response to the sur-reply underscore Plaintiff's willfulness and reinforce the Court's decision.
