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Plaintiff’s Erasure of iPhone Before Forensic Examination Leads to Recommended Dismissal of Case: eDiscovery Case Law

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

In Coyne v. Los Alamos National Security, LLC et. al., No. 15-0054 (D. N.M., Mar. 21, 2017), New Mexico Magistrate Judge Karen B. Molzen recommended that the court grant the defendants’ motion to dismiss after the plaintiff’s erased and reset her iPhone the day before it was produced for forensic examination, the “culmination of her and her husband’s willful failure to comply with their discovery obligations in this case.”

Case Background

In this case where the plaintiff alleged wrongful termination (among other complaints) after she was terminated pursuant to a Reduction in Force policy (the plaintiff contended it was retaliation for taking leave under the Family Medical Leave Act after an alleged assault by a co-worker), the Court had already granted Motions to Compel against both Plaintiff and Defendants.  However, only the plaintiff and her husband had been sanctioned for discovery violations with various fees, including attorney’s fees, to the tune of over $11,000 (most of which was still unpaid).

The parties continued to proceed with discovery, and on September 30, 2016, the defendants served plaintiffs’ counsel with a request for a forensic inspection of the plaintiff’s iPhone, seeking text messages between the plaintiff and her husband and between the plaintiff and her treating psychiatrist.  The plaintiff not only did not object to the request, she even cooperated with the defendants’ attempts to retrieve them from her cellular carrier and from Apple before agreeing to the inspection.

On January 4, 2017, the plaintiff’s counsel called the defendants’ to report that he was ready to ship the iPhone to the forensic examiner and it was sent the next day.  The forensic examiner discovered that the phone had been erased and reset six hours before the plaintiff had turned it over to her attorney to be sent for examination. In his affidavit testimony, the forensic examiner explained that erasing and resetting an iPhone cannot happen accidentally or inadvertently, but the plaintiff claimed to have no knowledge of what had happened. As a result, the defendants moved the Court to dismiss the plaintiff’s case in its entirety with prejudice “as a sanction for Plaintiff’s intentional and permanent erasure of all the data on her iPhone the day before it was produced” for the forensic evaluation.

Judge’s Ruling

Judge Molzen considered the relevant factors necessary to determine whether dismissal was warranted.  Those factors are: (1) The degree of actual prejudice to the defendant; (2) The amount of interference with the judicial process; (3) The culpability of the litigant; (4) Whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and, (5) The efficacy of lesser sanctions.  With regard to those factors, Judge Molzen determined that all were satisfied, with the possible exception of the fourth factor, but stated that she “is not convinced such a specific warning was required in this case”.  Judge Molzen also determined that none of the available sanctions options were sufficient, noting that “almost all” of the monetary sanctions levied against the plaintiff “remain unpaid”.

Determining that “Plaintiff’s decision to erase and reset her iPhone the day before it was produced” was “but the culmination of her and her husband’s willful failure to comply with their discovery obligations in this case”, Judge Molzen recommended that the court grant the defendants’ motion to dismiss.

So, what do you think?  Was the recommended sanction too harsh?  Please share any comments you might have or if you’d like to know more about a particular topic.

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