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Court Affirms $7 Million in Sanctions for Discovery Misconduct

Posted on March 3rd, 2017

Discovery misconductShawe v. Elting, Case No. 487, 2016 (Supreme Court of Delaware, Feb. 13, 2017) is a case discussed previously in this blog in which the trial court found that Plaintiff, who is Defendant’s former business and romantic partner, had deleted documents from his computer, failed to preserve his cell phone, improperly accessed Defendant’s emails, and committed perjury on multiple occasions during the case, and awarded Defendant over $7 million in fees and expenses based upon Plaintiff’s conduct. Plaintiff appealed, and the matter came before the Delaware Supreme Court.

Plaintiff argued that the trial court erred by finding that he acted in bad faith when he deleted files from his laptop and broke his cell phone. Plaintiff also argued that he was not afforded due process protections when he was sanctioned for perjury and that Defendant was awarded excessive fees.

The court reiterated some of the sordid details of the case, including Plaintiff’s claims that he had taken Defendant’s computer and removed her hard drive so he could read her emails, when in fact, he broke into her office, had an employee image her hard drive, concealed his activities with a write blocker, and replaced the computer to cover his tracks. He concealed the employee’s role for two years. He also remote accessed Defendant’s computer at least 44 times on 29 different occasions and gained access to 19,000 emails, including 12,000 privileged communications between Defendant and her attorney. Plaintiff also hired another third party, Richards, to break into Defendant’s office, take pictures, and remove hard copies of documents. After the suit was filed, Plaintiff claimed his niece dropped his phone in a cup of soda and ultimately threw it away because he found it in a drawer with rat droppings. He later deleted nearly 19,000 files from his laptop, which was discovered because his computer had made volume shadow copies and his own expert discovered it. He also lied in his discovery responses and at his deposition. He then gave false trial testimony and submitted a false affidavit during post-trial briefing.

The Supreme Court agreed with the trial court that Plaintiff acted intentionally and recklessly in ways that prejudiced Defendant. The court also stated that the trial court did not convict Plaintiff of perjury and merely imposed sanctions upon him for lying under oath, and so sanctions were appropriate with criminal safeguards or due process. The court finally found that the fees awarded were not excessive and affirmed the judgment of the trial court.

ILS – Plaintiff ESI Discovery Experts

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