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Email Fabrication Claim Required More Evidence Per FRCP 37 Criteria To Warrant Sanctions Order

Posted on November 15th, 2017

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Follow our blog to learn more about ESIIn Catrinar v. Wynnestone Communities Corporation, No. 14-1872, (E.D. Mich., 2017), although Plaintiff claimed Defendants created fake email evidence, the Court declined to issue sanctions.

On May 9, 2014, Plaintiff Lawrence Catrinar filed suit against his former employer Defendant Wynnestone Communities Corporation and and its representative Gilbert B. Silverman (“Defendants”) alleging violations of the Family Medical Leave Act (“FMLA”), as well as breach of contract and promissory estoppel. Before the Court is Plaintiff’s Motion for Discovery Sanctions.

Fed. R. Civ. P. 37 provides for sanctions for failure to make disclosures or cooperate in discovery. The Court must make findings as to the following criteria:  (1) whether this failure is due to willfulness, bad faith, or fault; (2) whether the other party was prejudiced; (3) whether the defaulted party was warned that failure to cooperate could lead to entry of default judgment; and (4) whether less drastic remedies had previously been imposed or considered.

Here, Plaintiff Catrinar alleged Defendants Wynnestone and Silverman fabricated and produced false evidence.  Plaintiff claimed there were two email versions with the same date, produced with conflicting content. Both the “real email” and the “fake email” are dated December 21, 2008. Defendant concedes that the native Outlook email file of what Plaintiff refers to as the “fake email” shows that it was created in January 2012, not December 2008. Included in Defendants’ response to the Plaintiff’s sanction’s request is the declaration of Defendant Silverman, wherein he states that he forwarded the December, 2008 email to himself in January, 2012, in an effort to explain the differential in the dates for the email.

The complaint was filed about two years after the “fake email” was created. The Court observed that the discrepancy between the two emails and Silverman’s explanation as to how the later email came to be created could foreseeably be exploited to the Plaintiff’s advantage in the context of a sanctions motion.  However, the Court determined that the “fake email” was not manufactured in response to a discovery request in the action, given that the complaint initiating the action was filed in May 2014, over two years after the “fake” email had been created in 2012. Also, the Defendants had willingly produced both emails after an extensive search of its email servers. Based upon this background information, the Court ruled that Plaintiff failed to show that Defendant acted with  “willfulness, bad faith, or fault” with respect to the creation of the “fake” 2012 email.

The Court also held that Plaintiff did not establish that he suffered any prejudice from the creation of the “fake” 2012 email, since Plaintiff received both emails from Defendants. The Court additionally found that Defendants had not previously been warned that a default judgment or other sanctions could be imposed upon them for discovery violations, nor had any lesser sanctions been previously imposed upon Defendants.

Because Plaintiff failed to establish numerous of the criteria necessary to impose sanctions under Fed. R. Civ. P. 37, the Court denied Plaintiff’s motion.

ILS–Plaintiff ESI Discovery Experts

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