Orchestratehr, Inc. v. Trombetta
178 F. Supp. 3d 476
N.D. Tex.2016Background
- Plaintiffs OrchestrateHR and Vivature moved for multiple sanctions (Dkt. Nos. 232, 240, 245/251, 281) and to compel discovery based on alleged discovery abuses, false testimony, spoliation, and improper contacts with plaintiffs’ employees. Motions were referred to Magistrate Judge Horan and heard Feb. 18, 2016.
- Central events: (1) defense counsel Sandra Liser retained a private investigator who contacted or attempted to contact current/former plaintiff employees after being told to coordinate through plaintiffs’ counsel; (2) Anthony Trombetta deleted emails around his resignation and later gave equivocal deposition testimony about deletions; (3) defendants produced documents late, provided deficient/superficial discovery responses and some affidavits/exhibits containing demonstrably incorrect statements; (4) plaintiffs alleged repeated false deposition testimony by Trombetta and BP’s corporate designee and sought adverse evidentiary/instructional sanctions.
- Court found Liser acted in bad-faith litigation conduct by instructing the investigator to contact a former employee after expressly agreeing not to contact her and after being told the employee was represented.
- On spoliation, the court found emails were deleted and some were unrecoverable, but plaintiffs failed to prove Trombetta acted with the requisite bad-faith intent to deprive use under Rule 37(e), so adverse-inference sanctions were denied.
- Court found defendants violated a prior July 15, 2015 discovery order (failure to produce/supplement and to identify bates ranges) with at least gross indifference and awarded fees under Rule 37(b); also granted emergency sanctions re: investigator contact and ordered counsel not to contact employees without coordinating through plaintiffs’ counsel and to produce communications with the investigator.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel’s investigator contacts warranted sanctions | Liser hired/ directed investigator to contact employees known or likely represented; this violated non-contact duties and warranted sanctions including monetary and exclusion of evidence | Defendants said contacts were permitted (former employees) or inadvertent; Hooten’s employment status disputed; no Rule 4.2 violation | Court: Liser engaged in bad-faith litigation conduct; granted limited sanctions: injunction barring contact without plaintiffs’ counsel, production of investigator communications, and attorneys’ fees for emergency motion (granted) |
| Whether Trombetta’s deletion of emails warranted adverse inference for spoliation | Trombetta deleted emails before leaving to conceal evidence; an adverse-inference instruction is appropriate | Trombetta says deletions were routine; backups/forensics may explain loss; no proof of intent to deprive | Court: Denied spoliation sanction — deletions shown but plaintiffs failed to prove intent to deprive under Rule 37(e) (motion denied) |
| Whether defendants’ witnesses (Trombetta, Perlman, Myers) gave false deposition testimony / whether inherent-power sanctions appropriate | Plaintiffs pointed to admissions, contradictions, and false exhibits/affidavits; seek heavy sanctions | Defendants argued mistakes, faulty memory, lack of willfulness, and reliance on others for exhibits; some false statements corrected or amended | Court: Although troubling and some testimony/affidavits were false or inaccurate, record lacked clear evidence of willful bad faith to impose inherent-power sanctions; motion denied in part (no inherent sanctions) |
| Whether affidavits containing false statements (Myers, Liser) support Rule 11 sanctions | Plaintiffs sought Rule 11 sanctions for false affidavits | Defendants noted correction/amendment; plaintiffs filed motion within Rule 11 safe-harbor period | Court: Denied Rule 11 sanctions because plaintiffs filed the motion during the 21-day safe-harbor period (motion premature) |
| Whether defendants violated the court’s July 15, 2015 discovery order and whether Rule 37(b) sanctions are warranted | Plaintiffs: Perlman Exhibit 152 and related emails show defendants failed to produce/supplement and to identify bates ranges as ordered | Defendants argued objections/appeal excused delay; claimed supplements provided later | Court: Found violation with gross indifference; granted fees and costs for that portion under Rule 37(b) and ordered full production/privilege logs by set deadline |
| Whether plaintiffs’ later motion to compel (Jan. 21 RFPs) warranted relief and fees under Rule 37(a) | Plaintiffs sought compelled production and sanctions for boilerplate/deficient responses and non-production | Defendants served supplemental responses and promised further supplementation, claimed some documents already produced | Court: Granted motion to compel in part; ordered full responses/productions or specific bates ranges and privilege logs by April 28, 2016; awarded plaintiffs attorneys’ fees for motion under Rule 37(a)(5) |
Key Cases Cited
- Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (courts have inherent power to sanction, but exercise it with restraint)
- Guzman v. Jones, 804 F.3d 707 (5th Cir.) (spoliation adverse-inference requires bad faith)
- Whitt v. Stephens County, 529 F.3d 278 (5th Cir.) (adverse inference for intentional destruction of evidence)
- Matta v. May, 118 F.3d 410 (5th Cir.) (court must find bad faith to assess fees under inherent power)
- Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex.) (duty to preserve arises on notice that evidence is relevant)
- Dondi Properties Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284 (N.D. Tex.) (standards of professionalism and civility expected of litigation counsel)
- Topalian v. Ehrman, 3 F.3d 931 (5th Cir.) (sanctions must be least severe adequate to accomplish purpose)