District Court Adopts Magistrate’s Recommendation of Termination Sanction Upon Finding Willful ESI Spoliation
Previously, this blog discussed the case of Coyne v. Los Alamos National Security, LLC, Case No. 15-00054 (D. N.M., May 1, 2017), in which a former employee of Defendant Los Alamos sued Defendants for wrongful termination. In the case, Plaintiff alleged that FMLA leave from her job resulted from a co-worker’s assault, and that ultimately she was terminated from her job for reporting the assault and taking the FMLA leave. Defendants alleged that her employment was terminated due to a reduction in force policy.
During the case, the magistrate judge in charge of discovery found that Plaintiff deliberately wiped her iPhone in advance of a court-ordered forensic examination of the phone to delete text messages and destroy ESI to prevent Defendants from discovering the data. Neither the cell phone carrier nor Apple could recover the data lost in the wipe, and the magistrate judge determined that the evidence of deliberate spoliation was “overwhelming”. The magistrate judge also found that the prejudice to Defendants was significant, that Plaintiff interfered with the judicial process to engage in willful ESI spoliation. The magistrate recommended the sanction of dismissal.
Plaintiff objected to the magistrate’s proposed findings and recommended disposition, specifically the finding of overwhelming evidence of deliberate destruction of her iPhone data. She did not offer any alternative explanation for the destroyed phone.
The district judge also rejected Plaintiff’s arguments. The evidence showed that on the same day Plaintiff turned her iPhone over to her counsel for forensic examination, someone had accessed the phone using her passcode, selected the “erase and reset” option, and then confirmed. Two minutes later, someone used the wireless network for the restaurant across the street from Plaintiff, and 20 minutes later, someone manually dialed Plaintiff’s husband’s phone number from the phone. The district judge wondered, “Who else could have done this? The phone was not stolen…” The court found that Plaintiff had motive, opportunity and means to wipe the iPhone, and “it defies belief that anyone other than Plaintiff erased the data on the phone just hours” prior to her turnover for review. Plaintiff, the court found, intentionally destroyed evidence she was ordered to turn over, filed a false affidavit, and attempted to deceive the court with fabricated evidence. The court found that Plaintiff’s conduct was egregious enough to warrant terminating sanctions and thus overruled Plaintiff’s objection and adopted the magistrate judge’s recommendations, and dismissing the case.