Part I addressed the Court’s ruling in FAST v. GODADDY.COM, LLC, No. CV-20-01448-PHX-DGC (D. Arizona Fed. 2022), under Rule 37(e) regarding the duty to preserve. Part II below addresses the Court’s ruling regarding Rule 37(c) and the failure to produce.
Defendants moved for sanctions under Rule 37(c)(1) for Plaintiff’s failure to produce (1) 487 Facebook Messenger messages between her and Mudro, (2) at least four covertly made audio recordings of meetings with GoDaddy employees, and (3) emails between Plaintiff and her podiatrist, Dr. Donald Rhodes.
Rule 37(c)(1) “authorizes a court to sanction a party for failing to produce information required by Rule 26(a) or (e).” Rule 26(a), which was not at issue in the case, requires a party to make initial disclosures of information that may be used to support its claims or defenses. Rule 26(e) requires “a party to supplement its Rule 26(a) disclosures and its responses to interrogatories, requests for production, or requests for admission.” This supplementation must be made in a “timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]” The duty to supplement is a continuing duty. Rule 37(c)(1) provides that a party who violates Rule 26(e) may not use the withheld information at trial unless the failure was substantially justified or harmless.
First, Defendants argued that although Plaintiff produced her Facebook Messenger messages with Mudro, she did not include 487 messages, with undisclosed modifications to the text of several other messages, and with complete fabrication of one message. Defendants asserted they did not have knowledge of the hidden messages until they received a copy of the same messages from Mudro.
Plaintiff responded that her production was “not done perfectly” but argued that she did the best she could. She claimed she converted a PDF download from Facebook into a Word document, where she manually removed messages that she considered to be irrelevant because they discussed personal issues, and as part of hand-typing the relevant messages into Word, mistakes were made.
Plaintiff asserted that her ability to produce all discoverable information was hindered by the cognitive effects of her Complex Regional Pain Syndrome (“CPRS”) and the medications she took to cope. Again, Plaintiff argued she only deleted messages she thought were irrelevant to the lawsuit.
The Court did not accept Plaintiff’s characterization of her actions. Plaintiff withheld nearly 500 Facebook messages, and although some were personal, many of them were plainly relevant and included information about her CPRS, her case against GoDaddy, and her search for other jobs. Moreover, Plaintiff complained she could not meet the challenging discovery obligations, but the Court noted she could have provided the full PDF download to her attorney without modifying the document.
The Court also denied Plaintiff’s claim that she was impacted by CPRS and therefore fell short of her discovery obligations. In fact, in a message from Plaintiff to Mudro on Feb. 18. 2019, Plaintiff claimed she was “[c]ognitively . . . 95% stronger than most people” and that she “exercise[s her] brain every day.” The Court said the modifications made to various messages were clear attempts to hide information. The Court examined two messages sent by Plaintiff in which she discussed her trial treatments for her CPRS and found that the messages were clearly relevant to her claim for CPRS damages.
Plaintiff had an obligation under Rule 26(e) to produce to Defendants “in a timely manner,” accurate versions of her messages with Mudro rather than the edited versions she produced. However, the accurate versions came after discovery was closed and in response to Defendants’ motion for sanctions. The Court found Plaintiff could not show that her failure to produce the accurate messages was substantially justified or harmless, therefore sanctions under Rule 37(c)(1) were justified.
Next, Defendants argued that Plaintiff failed to produce at least four audio recordings she surreptitiously made of meetings with GoDaddy employees. On March 3, 2021, Defendants served a discovery request that sought all recordings that related to the claims, allegations, and defenses in the lawsuit. Plaintiff replied that she had no recordings that related to her claims.
However, before the close of discovery and after all non-expert depositions were completed, Plaintiff produced three of the four recordings. The recordings included conversations with Defendant Lakshmanan that discussed her medical leave; her call with Eva Adams, human resource employee at GoDaddy, in which she discussed her position at GoDaddy was eliminated; and another call with Adams in which she discussed Plaintiff’s allegation of FMLA discrimination and complaints about Lakshmanan.
The Court noted that Plaintiff was required to produce all four recordings in response to Defendants’ document production request. Her failure to timely correct her false assertion that there were no recordings violated Rule 26(e). Despite Plaintiff’s contention that she forgot about the recordings, the Court stated that it was difficult to believe that Plaintiff forgot about pivotal events in the case, especially since Plaintiff identified the recordings in a private catalogue of evidence she planned to use in the case.
The Court found that Plaintiff provided no substantial justification for her failure to produce the recordings, the failure was not harmless, and Plaintiff’s “last minute tender of the recordings did not cure the prejudice.” Accordingly, Defendants continued to be prejudiced by the failure of Plaintiff to produce the fourth recording she claimed to have made and sanctions were authorized under Rule 37(c)(1).
The Court noted that the last discovery category under Defendants’ Rule 37(c) motion was the most troubling. Dr. Rhodes was a podiatrist who treated Plaintiff’s CPRS in 2019. On July 7, 2020, he signed a letter that stated Plaintiff’s CPRS was caused by swelling that resulted from Plaintiff’s leg position while working at Defendants’ insistence on Feb. 20-23, 2018.
But Plaintiff did not produce email communications with Dr. Rhodes in response to Defendants’ requests for production prior to Dr. Rhodes’s deposition and Defendants suspected that Plaintiff had a hand in the letter that was prepared regarding her CPRS. Defendants then requested again that Plaintiff produce her communications with Dr. Rhodes, but Plaintiff did not produce anything.
Defendants then subpoenaed Dr. Rhodes for his communication with Plaintiff. He produced several key emails. In one email, dated July 2, 2020, Plaintiff asked Dr. Rhodes to write a letter that said her CPRS was caused by her work at GoDaddy following her surgery. Plaintiff also provided, per an email sent on July 7, 2020, a draft letter expressing that opinion. Defendants noted that Plaintiff’s draft letter was nearly identical to the letter Dr. Rhodes signed on July 7, 2020. In short, Plaintiff failed to disclose emails that showed she ghostwrote one of the key medical conclusions of the case.
Plaintiff responded that she did not remember drafting the email herself and that she could not find the emails when she searched for Dr. Rhodes’ name or the exact wording of the email. She produced a screenshot of an apparent search of her email account that did not reveal anything, but she redacted all the search terms in the screenshot which made it impossible to determine what she searched for. Yet Plaintiff did not dispute that the emails were sent from her account, did not claim they were sent by someone else, and did not explain why they are not in her custody, possession, or control.
Rule 26(e) required Plaintiff to supplement her incomplete response to Defendants’ requests for communications with Dr. Rhodes. As noted by the Court, her breach of the duty was not substantially justified or harmless. Without the emails, Defendants could not prepare fully for Dr. Rhodes’ deposition, explore the origin of the critical letter claiming Plaintiff’s CPRS was caused by Defendants, nor challenge his claim that he wrote the letter without Plaintiff’s assistance. The Court found that sanctions were authorized.
Defendants argued that the most appropriate sanction was dismissal of Plaintiff’s suit because her actions amount to a “pattern of deception and discovery abuse . . . [that made it] impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available.” Defendants further asserted that they would be forced to expend significantly more time and money pursing additional subpoenas, computer forensic experts, and an evidentiary hearing to present future instances of spoliation if the Court did not dismiss the case. Finally, Defendants argued that there was no guarantee they would be able to reply on the information Plaintiff produced.
Plaintiff countered that dismissal was not appropriate, she worked diligently to respond to Defendants’ discovery requests, and what she did not produce was what she believed to be irrelevant to the case.
While the Court was not persuaded by Plaintiff’s arguments, the Court also did not grant dismissal which “constitutes the ultimate sanction for spoliation” and should only be used when resulting prejudice is “extraordinary, denying [a party] the ability to adequately defend its case.” Instead, the Court found that Plaintiff’s intentional conduct and the prejudice it caused Defendants warranted an adverse inference instruction that would allow the jury to infer that the information intentionally deleted by Plaintiff was unfavorable to her case.
Defendants also argued in their reply brief that dismissal was warranted for Plaintiff’s deletion of messages from Facebook Messenger. The Court concluded that dismissal was not warranted under 37(c)(1) for Plaintiff’s undisclosed “redactions” reasoning that it did not foreclose Defendants from preparing an effective defense.
Finally, as part of the Court’s ruling, the Court awarded Defendants attorneys’ fees and costs associated with litigating the motion for sanctions as well as allowed Defendants to conduct a forensic review of Plaintiff’s electronic devices to determine whether any spoliated or unproduced information was recoverable.