4 F. Supp. 3d 62
D.D.C.2013Background
- Plaintiff Lynn M. Johnson sued BAE Systems and an individual for workplace sexual harassment, discrimination, and retaliation, with emotional distress damages central to her claims.
- Defendants requested plaintiff's medical records; Johnson produced medical records allegedly from her treating physician, Dr. Charles Hayden.
- On May 15, 2013 (the day of an independent medical exam by defendants’ expert Dr. Siebert), Johnson (and her counsel Jordan) provided a set of Dr. Hayden records to defendants; counsel did not review or retain copies before producing them.
- After defendants subpoenaed Dr. Hayden, Johnson admitted to counsel she had deleted, altered, and forged entries in her Hayden records and was unsure which produced copies were authentic.
- Counsel then obtained records from Dr. Hayden and re-produced them on June 24, 2013 without notifying defendants that prior produced records may have been falsified. Comparison showed numerous deletions, alterations, and fabricated entries.
- The Court found by clear and convincing evidence that Johnson produced falsified records and that her counsel violated Rule 26 by failing to certify, investigate, retain, and correct the deficient production; the Court imposed sanctions on both Johnson and counsel but declined to dismiss the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did plaintiff produce falsified medical records in discovery? | Johnson admitted editing but claimed uncertainty which copies were sent; sought to minimize scope. | Johnson fabricated, deleted, and forged entries in Dr. Hayden records and provided falsified copies to defendants and Dr. Siebert. | Held: By clear and convincing evidence Johnson produced falsified treatment records. |
| Did counsel violate Rule 26(g) and 26(e) by (1) failing to certify/retain produced records and (2) failing to timely/correct the production after learning of falsification? | Counsel argued he relied on client, attempted to obtain originals, and acted timely in sending June 24 records. | Counsel failed to inspect, failed to retain bates-stamped copies, and failed to alert defendants that an earlier production might be falsified. | Held: Counsel violated Rule 26 by not signing/certifying, not making reasonable inquiry, not retaining copies, and not appropriately supplementing/correcting the production. |
| Appropriate sanction severity — dismissal or exclusion of emotional damages? | Plaintiff proposed limited sanctions (re-exam, fee reimbursement, short discovery extension, small fine). | Defendants sought exclusion of all mental health evidence, adverse inference, attorneys’ fees, and urged dismissal. | Held: Dismissal and wholesale exclusion of emotional damages were inappropriate; Court ordered adverse inference instruction, attorneys’ fees and costs allocation, and enhanced discovery controls and production procedures. |
| Use of inherent power and evidentiary standard for sanctions | Plaintiff emphasized proportional remedies and due process; counsel asserted uncertainty. | Defendants relied on courts’ inherent authority to police fraud and requested severe penalties. | Held: Court applied inherent authority and Rule 26 standards: clear and convincing evidence required for penal sanctions; lesser issue-related sanctions available by preponderance; imposed mixed sanctions tailored to misconduct. |
Key Cases Cited
- Shepard v. American Broadcasting Cos., Inc., 62 F.3d 1469 (D.C. Cir. 1995) (discusses courts’ inherent power to sanction and categories of sanctions)
- Chambers v. NASCO, Inc., 501 U.S. 32 (U.S. 1991) (Supreme Court recognition of courts’ inherent authority to sanction litigation abuses)
- Webb v. District of Columbia, 146 F.3d 964 (D.C. Cir. 1998) (requires reasoned explanation before imposing dismissal/default and consideration of lesser sanctions)
- Shea v. Donohoe Construction Co., 795 F.2d 1071 (D.C. Cir. 1986) (articulates justifications for dismissal/default as discovery sanction)
- Richardson v. Union Oil Co. of California, 167 F.R.D. 1 (D.D.C. 1996) (sanctions for document alteration; awarding fees and precluding defendant from contesting certain defenses)
- Young v. Office of the United States Senate Sergeant at Arms, 217 F.R.D. 61 (D.D.C. 2003) (dismissing where willful failure to comply with court orders and witness tampering were found)
- Stender v. Vincent, 92 Haw. 355, 992 P.2d 50 (Haw. 2000) (source for adverse inference jury instruction language)