The District of South Dakota recently issued severe sanctions against a defendant engaged in willful discovery misconduct. In Atmosphere Hospitality Management, LLC v. Curtullo et. al., Case No. 13-5040 (July 29, 2015), Plaintiff sued Defendants regarding various contracts between the parties. Multiple discovery disputes arose during litigation, and Plaintiff filed a Motion to Compel certain discovery items from Defendants. The court granted most of Plaintiff’s request, and Plaintiff moved for sanctions based upon Defendants’ failure to comply with the court’s order compelling discovery.
Citing Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir. 1999), the court noted that sanctions for discovery violations are appropriate under FRCP 37 when a party willfully refuses to comply with a discovery order and, in so doing, prejudices the moving party.
The court found that Defendants had inadequately responded to nearly all of Plaintiff’s discovery requests. Defendants’ failure to produce one email in particular troubled the court. The court had earlier denied Plaintiff’s motion for preliminary injunction based upon a representation that Defendants had sent a particular email. Plaintiff requested that Defendant provide an electronic copy of the dispositive email with its metadata but Defendants refused to provide it. Defendants responded that Plaintiff already had a copy because Plaintiff’s expert had located and copied the email after collecting forensic images of Defendants’ hard drives. Plaintiff informed the court that while their expert had found two images of the email, the expert had concluded that Defendants never actually sent the email. The expert based his conclusions on the fact that he could not find a copy of the email in a Sent folder, and because of discrepancies between the time stamps on the two copies he found and the screenshot submitted by Defendants as an exhibit during the motion for preliminary injunction.
Based on the expert’s conclusions, the court found that Defendants’ conduct rose to the level of fraud upon the court. The court dismissed Defendants’ third party claims and counterclaims as sanctions for their behavior and ordered that they pay Plaintiff’s reasonable attorneys’ fees.