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Destruction of Cell Phone Records, Lies Under Oath Considered by Court In Motion for Sanctions

Posted on May 31st, 2018

Our blog explains discovery

In the lawsuit Heggen v. Maxim Healthcare Servs., Inc., a former employee of Maxim Healthcare Services (Maxim) filed a lawsuit over alleged sexual harassment and retaliation. Maxim, the defendant, is a provider of temporary medical staff, home health care and wellness services.

Plaintiff, who was employed at the company as a home health care aide, filed the suit against Maxim in December 2016. The Court held a pretrial conference in March the following year and set a discovery deadline of September 29, 2017. Discovery commenced after the pretrial conference.

Plaintiff’s original attorney withdrew from the case. On November 22, 2017, another attorney appeared on Plaintiff’s behalf . Shortly afterwards, Maxim filed a motion for dismissal sanctions. According to Maxim, Plaintiff was dishonest under oath and destroyed cell phone records that could have been used as evidence in the case. Maxim alleges that Plaintiff lied under oath about her prior employers, the circumstances of her employment separation subsequent to her employment with Maxim, and also lied about her personal litigation history.

Plaintiff’s opposition stated that the sanctions against her were not warranted. Plaintiff  argued any issues with her credibility could be challenged during a trial. In addition, Plaintiff pointed out that some of the supposedly destroyed phone records had been located.

Plaintiff’s statements on prior employers changed from the initial deposition, after Maxim’s discovery efforts showed she had omitted important information. The Court viewed Plaintiff’s statements as lacking credibility. Maxim’s discovery efforts found that Interim was Plaintiff’s most recent employer prior to her working at Maxim. Thus, it would be unlikely that she would have forgotten to include this former employer, especially when the circumstances of her departure shared similarities with her departure from Maxim. The Court found that the omission appeared intentional, thus warranting sanctions in some form against Plaintiff.

In addition to claims of omission, Maxim alleged that Plaintiff also destroyed key evidence in the case. Maxim argued that this, too, provided grounds for dismissal. During her deposition, Plaintiff testified that she made roughly seven recordings of unidentified Maxim employees and that the Equal Employment Opportunity Commission (EEOC) had the recordings. At some point, she performed a factory reset on her phone that deleted the recordings.

While it is indisputable that Plaintiff had a duty to preserve these recordings, and admitted that she had intentionally deleted them, she did so only after believing she had preserved them by playing them for her lawyers and sending them to the EEOC. Thus, there is no evidence to suggest that Plaintiff deleted these recordings with the intent to withhold information that may be unfavorable to the case.

However, the Court found that Plaintiff was negligent when she deleted these recordings, performed a factory reset and then lost or deleted the email transmissions of these recordings – all which took place while the suit was pending. Therefore, the Court concluded that sanctions in some form were warranted against Plaintiff.

The Court ruled that Maxim’s motion for sanctions be granted in part.  It ordered that Plaintiff  pay reasonable expenses incurred by Maxim. In addition, the Court warned Plaintiff she could face more sanctions for additional discovery transgressions.

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