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Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone: eDiscovery Case Law

In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case.

Case Background

In this defamation case, the plaintiff claimed to have lost his cell phone while out walking his dog. One of the defendants found the cell phone on his front lawn near an uprooted sign endorsing his co-defendant for public office. The defendants notified the media and the police that they found the cell phone near the sign and claimed that the plaintiff must have removed the sign, which he denied and, eventually, sued the defendants for defamation.

During deposition of the plaintiff when he was asked for a photo that he had taken the night he lost his phone, he admitted that he had since wiped the phone, stating that “I’ve completely wiped the phone, as I do – did many times working for Google, putting new operating systems on. So whatever photo is – if I have it, I’ll be happy to produce it, but it’s certainly not on the phone anywhere.”  He ultimately indicated that he wiped out the contents of the phone “[s]ometime in early 2012.” He said he did that because the phone was “broken” and he “had to reinstall the operating system”.  When the defendants requested to inspect the phone and arranged to do so, the phone was provided uncharged with the charging connector damaged so that it could not be connected and charged.  In April 2014, the defendants filed a joint motion for terminating sanctions.

Trial Court’s Ruling

The trial court observed that the defendants provided “ample evidence” to show that the plaintiff delayed and obstructed their ability to inspect the phone and, when finally allowed to inspect it, the phone battery was dead and the charging mechanism had been irreparably damaged preventing the phone from being plugged into a charger.  The court added: “What is most disconcerting, however, is the action taken by [Woodell] prior to filing the lawsuit, which included allegedly capturing for his own purpose information from the phone favorable to his position, and then completely wiping clean the operating system such that all potentially relevant information retained on the phone was destroyed.”

The trial court also noted that the plaintiff, in his deposition, stated that he “wiped clean” the phone because he had done that “many times working for Google” but in his declaration he stated that Google instructed him to wipe out the “corrupted system.” In assessing the contradictory evidence, the court found that the plaintiff “was contemplating legal action in 2011, well before he destroyed the contents of the phone in 2012.”  As a result, the trial court granted the defendants’ motion for terminating sanctions, determining that it was “patently unjust” to force the defendants to continue to defend an action when they had been denied potentially exculpatory evidence, and dismissed the plaintiff’s complaint with prejudice.

The plaintiff appealed the ruling, arguing that terminating sanctions were not appropriate because there was no pattern of conduct with regard to discovery and that the trial court committed prejudicial error when it made factual and credibility findings without holding an evidentiary hearing.

Appellate Court’s Ruling

Regarding the plaintiff’s argument that sanctions were not appropriate because there was no pattern of conduct with regard to discovery, the appellate court stated “It is undisputed that the phone Woodell produced no longer contained the critical data, and the production of the phone was of no value to defendants. Woodell’s argument that the law prevented the trial court from imposing terminating sanctions when there was no pattern of discovery abuse or no violation of a prior discovery order is incorrect.”  The appellate court also found that the trial court did not abuse its discretion in finding – without holding an evidentiary hearing – that the defendants met their burden of showing that the plaintiff deliberately removed the data from the phone in anticipation of litigation.  As a result, the appellate court affirmed the lower court’s ruling to dismiss the lawsuit.

So, what do you think?  Did the spoliation warrant termination sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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