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Court Considers Whether Text Messages Fabricated In Deciding Motion For Terminating Sanctions

Posted on April 11th, 2018

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In Lee v. Trees, Inc., No.  3:15-cv-0165-AC, (Dist. Ct. D. Oregon, 2017) the Court considered a motion requesting sanctions against a party accused of fabricating evidence in a sexual harassment case.

Plaintiff Sarah Lee (“Lee”) was working as a flagger for employer and Defendant Trees, Inc. (“Trees”), a logging company, when, in May 2013, she and and a co-worker began a consensual romantic relationship. According to Lee, when she sought to end the relationship several weeks later, the co-worker made numerous threats that she would lose her job unless the relationship continued. This alleged harassment continued from approximately June 2013 until November 2013, when Lee states that she completely ended the relationship. Ten days later, on December 3, 2013, Trees terminated Lee’s employment.

On December 19, 2013, Lee filed an administrative complaint against Trees with the Bureau of Labor and Industries (“BOLI”) and the U.S. Equal Employment Opportunity Commission (“EEOC”). The complaint alleged verbal sexual harassment by two of Lee’s former co-workers. According to the complaint, although Lee had reported the disparaging comments (which resulted in disciplining of the co-workers), the harassment of Lee by the co-workers had continued. Trees denied the allegations.

While employed by Trees, Lee had several cell phones, all of which sent and received text messages. Lee told the BOLI investigator assigned to both adminstrative complaints that she could provide for review those text messages from her cell phones in which she asked the co-worker to stop demanding that the relationship continue.  On September 16, 2014, more than a month after making the offer to provide the text messages to the investigator, Lee provided printed copies of several text messages. The BOLI investigator noted that the co-worker involved said that Lee may have modified or created some of the texts she provided. Trees asked Lee to provide the texts in their native format, but Lee continued to provide the same print copies.

Defendants hired a certified forensic computer examiner, to inspect and analyze Lee’s cell phone. The forensic examination of Lee’s cell phone revealed that many of the text exchanges for which Lee provided printed versions had been fabricated and were actually still in her unsent folder. Once the expert produced his report, the parties began settlement negotiations.

Based on Trees’ accusations of evidence fabrication against Plaintiff Lee, Trees sought sanctions against Lee by requesting dismissal of Lee’s claims with prejudice or, in the alternative, lesser issue, evidentiary, and instructional sanctions against Lee. Lee responded by denying the allegations of evidentiary misconduct, argued that the sanctions were unwarranted, and further stated that should the court determine the evidence is to some degree “suspect,” that lesser sanctions would suffice.

In considering the parties’ arguments, the Court stated the precept that a party has a duty to preserve evidence when it knows or reasonably should know that evidence is potentially relevant to litigation, or when the destruction of that evidence would prejudices the opposing party.  The Court then commented on the evidence which showed that Plaintiff repeatedly obstructed the discovery process as the litigation progressed. The Court further noted that Lee’s only evidence to counter the fabrication charge consisted of two short answers contained on a single page excerpted from her deposition, in which she simply denied, when asked, whether she falsified or fabricated text messages. The Court ruled that the record overwhelmingly established that Lee fabricated the text messages in question.

The Court then went on to consider what, if any, sanctions should issue against Lee for the fabrication.  Among  the criteria considered by the Court were the nature of the falsification and how the falsification was executed, in that such are demonstrative of willfulness and bad faithThe Court made factual findings that Lee intentionally manipulated and interspersed the actual text messages with strategically crafted false text messages to lend support for her claims. She also failed to preserve her phones and withheld the native, electronic versions of the text messages to conceal her wrongdoing. A sufficient finding was made of willful conduct warranting sanctions.

In her opposition, Lee contended that sanctions less severe than dismissal would suffice as a remedy.  The Court set out multiple reasons why lesser sanctions would be inadequate: (1) Lee does not have the financial resources for monetary sanctions to supply an adequate remedy; (2) Evidentiary sanctions are not appropriate, because the challenged text exchanges underlie the entire dispute, and without them, little to no evidence of the alleged discrimination would remain; (3) Lee’s pattern of deception casts doubt upon other evidence she has provided and may yet provide; (4) Fourth, termination is appropriate here because any lesser sanction would suggest to future litigants that they may manufacture evidence and suffer no meaningful consequences if caught;  and, (5) Dismissal is critical to preserve public confidence in the courts.

The Court granted Defendants’ motion for terminating sanctions and dismissed Lee’s claims with prejudice.

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