eDiscovery Daily Blog

• October 23, 2017

But first, a reminder that Relativity Fest started yesterday and CloudNine is there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) on Tuesday.  Click here to see our post on some of the anticipated highlights from the conference.  Today’s highlight is The Judicial Panel, today at 1:00pm, with David Horrigan of Relativity, along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and (all the way from Australia) Justice Peter Vickery of the Supreme Court of Victoria (and the recent landmark TAR decision in that country) to discuss the latest legal developments in eDiscovery.

In Catrinar v. Wynnestone Communities Corp., et al., No. 14-11872 (E.D. Mich. Sept. 30, 2017), Michigan Magistrate Judge R. Steven Whalen denied the plaintiff’s Motion for Discovery Sanctions (requesting a default judgment) for fabricating and producing false evidence, finding that the defendant’s production of two versions of an email fail all four factors of the Harmon test applied by the court in this case to determine whether the defendant’s failure was due to willfulness, bad faith, or fault and whether the plaintiff was prejudiced by the defendant’s conduct, among other factors.

Case Background

In this case regarding the plaintiff’s claim against his former employer alleging violations of the Family Medical Leave Act (“FMLA”) as well as breach of contract and promissory estoppel, the centerpiece of the plaintiff’s Motion for Discovery Sanctions was an allegation that the defendants fabricated and produced false evidence in the case.  The allegation of false evidence stemmed from defendant Silverman’s apparent rewrite of an email originally sent on December 21, 2008, concerning an “E&S” Plan and whether Silverman was aware of the plan or authorized any amendments to the plan.  The original email, which the plaintiff referred to as ‘the real email,’ was written partially in Spanish; the second, which the plaintiff referred to as ‘the fake email,” elaborated more on Silverman’s lack of knowledge of any such plan.  Both emails were dated on December 21, 2008 and the plaintiff argued that the “fake email” fraudulently supported Silverman’s position that he did not authorize an amendment to the E&S Plan, and that the “real email” offered no such support.

The defendant conceded that the native Outlook email file of what the plaintiff referred to as the “fake email” showed that it was created in January 2012, not December 2008.  However, in Silverman’s declaration, he stated that he forwarded the December 2008 email to himself in January 2012 for the purpose of re-writing in English and elaborating on his original message, stating “The point of the two emails is the same.”

Judge’s Ruling

Judge Whalen stated: “The Court’s discretion is informed by the four-part test described in Harmon v. CSX Transportation, Inc…: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed or defaulted party was warned that failure to cooperate could lead to dismissal or entry of default judgment; and (4) whether less drastic sanctions were imposed or considered before dismissal or default judgment was ordered.”

Judge Whalen also noted that “In deciding whether to impose ‘the draconian sanction’ of default judgment, the first factor—the party’s willfulness or bad faith in failing to comply with a discovery order—looms large.”  Noting that “Plaintiff filed his complaint on May 9, 2014, about two years and four months after the ‘fake email’ was created”, Judge Whalen, while acknowledging that “the discrepancy between the two emails and Silverman’s explanation as to how the later email came to be created may undoubtedly be exploited to the Plaintiff’s advantage” in trial, nonetheless stated: “I do not find that Plaintiff has shown ‘willfulness, bad faith, or fault’ with respect to the creation of the 2012 email.”  Judge Whalen also found that the plaintiff failed to meet the second Harmon factor, determining that the plaintiff was not prejudiced due to the fact that an “extension of discovery cures any prejudice which might otherwise have occurred as the result of the delay in Defendants’ production of the emails.”  Judge Whalen also found that the third and fourth Harmon factors were also not met, stating: “Defendants have not been previously warned that a default judgment or other sanctions could be imposed for discovery violations, nor have any lesser sanctions been imposed.”  As a result, Judge Whalen denied the plaintiff’s Motion for Discovery Sanctions.

So, what do you think?  Was the defendant’s explanation for the second email plausible?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.