Negligent Spoliation Inadequate For Dismissal
Heggen v. Maxim Healthcare Servs., Inc., No. 1:16-cv-00440-TLS-SLC (N.D. Ind. April 27, 2018).
In this employment case, the court sanctioned the plaintiff for destroying cell phone records and lying under oath. However, the court denied the “draconian sanction of dismissal,” choosing instead to impose monetary sanctions. It also reserved judgment on an adverse inference jury instruction.
The plaintiff, Theresa Heggen, previously worked for the defendant, Maxim Healthcare Services, Inc., as a home health care aide. After her employment ended, Heggen filed claims for sexual harassment and retaliation.
In this motion, Maxim asked the court to dismiss Heggen’s complaint as a sanction for lying under oath and destroying evidence.
Maxim alleged that Heggen lied under oath about three subjects.
First, regarding her prior employment, Heggen failed to mention her employment at Interim Health Care. According to Maxim’s review of Interim’s records, Heggen left Interim after “a patient’s medications went missing” and Heggen “tested positive for the missing medications.” Heggen claimed that she simply forgot to mention Interim. The court rejected this explanation as incredible, finding the omission intentional.
Second, Heggen testified that she “voluntarily” left her two subsequent employers. Maxim disagreed, claiming that both employers fired her. One employer received a complaint that Heggen stole $300 from a client. The other stated that it terminated Heggen for mismanaging her client’s financial assets. However, the court accepted that Heggen may have “take[n] the view that she quit” before she could be fired.
Finally, Maxim alleged that Heggen lied when she claimed no prior litigation history. Citing a search of Indiana’s online court docket, it stated that Heggen had appeared in approximately 30 actions. Heggen countered that she thought the question referred only to other employment litigation. The court found this explanation reasonable.
Turning to the spoliation of evidence, Maxim argued that “Heggen destroyed key evidence,” justifying dismissal. Heggen claimed to have made “about seven [cell phone] recordings” that she said supported her claims. She testified that she had provided the recordings to the Equal Employment Opportunity Commission (EEOC). She further stated that she “emailed the recordings to the EEOC,” though she couldn’t find a copy of that email. Thereafter, Heggen deleted the recordings from her phone and “performed a factory reset” that wiped the phone completely.
Maxim was unable to find the recordings through the EEOC or the Fort Wayne Metropolitan Human Relations Commission (“Metro”). Heggen’s counsel, on the other hand, successfully obtained three recordings from Metro. Even so, those files were copies, lacking original metadata. Curiously, though Heggen claimed to have made the recordings on her iPhone, the recovered files were in a format generally used by Android phones.
The court noted that Heggen was under a duty to preserve the recordings and that she failed to do so.
Federal Rule of Civil Procedure 37 allows the court to impose sanctions for “hiding evidence and lying” under oath. The court also has the inherent authority to sanction parties for misconduct. That authority encompasses dismissal as an appropriate sanction for a party’s abuse of the judicial process. However, sanctions “must be proportionate to the circumstances.”
Here, the court found “no evidence that Heggen deleted the original recordings with the intent ‘to withhold unfavorable information’” about her claims. Importantly, the evidence she purported to have would have helped her case, not Maxim’s. The court concluded that “Heggen acted negligently” by destroying the records, but it did not find bad faith.
The court then assessed what sanction would be “a proportionate response” to Heggen’s false testimony and negligent destruction of evidence. It held that the “draconian sanction of dismissal” was not yet appropriate. This ultimate sanction requires the court to find a heightened level of willfulness or bad faith, not mere negligence. The court further observed that dismissal is generally inadvisable without a warning. The court proceeded to explicitly warn Heggen that “any additional discovery transgressions may result in further sanctions,” including dismissal.
Having denied dismissal, the court assessed a monetary sanction in the form of Maxim’s reasonable expenses for the motion. Additionally, while “a spoliation charge to the jury concerning the recordings may be appropriate,” it would be “premature” at this time.
Therefore, the court granted the motion in part, imposing monetary sanctions but denying dismissal. It reserved any decision about a spoliation jury instruction until trial.
Takeaways on Preserving Original Evidence
The court here could have easily concluded that the plaintiff lied about more than her previous employment, falsifying the alleged recordings as well. The lack of original files or metadata, the deletion followed by a full phone reset, and the eventual recovery of Android-format files reportedly recorded on an iPhone all raise concerns. Insulate yourself from similar suspicions by ensuring that you preserve evidence with its metadata intact.