Espejo vs. Lockheed Martin Operations Support, Inc.

Filing 79

ORDER GRANTING DEFENDANTS LOCKHEED MARTIN OPERATIONS SUPPORT, INC. AND RICHARD T. DUNN'S MOTION FOR DISMISSAL SANCTION DUE TO PLAINTIFFS INTENTIONAL SPOILATION OF EVIDENCE (ECF No. 63 ). Signed by JUDGE HELEN GILLMOR on 11/21/2014. ~This case is DISMISSED WITH PREJUDICE as to all remaining Defendants. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL V. ESPEJO,

)
)
)
Plaintiff,
)
)
)
vs.
)
)
LOCKHEED MARTIN OPERATIONS
)
SUPPORT, INC.; RICHARD T. DUNN; )
)
BRANDO LADINES; REX LADINES,
)
)
Defendants.

CIV. NO. 14-00095 HG-RLP

ORDER GRANTING DEFENDANTS LOCKHEED MARTIN OPERATIONS SUPPORT,
INC. AND RICHARD T. DUNN’S MOTION FOR DISMISSAL SANCTION DUE TO
PLAINTIFF’S INTENTIONAL SPOILATION OF EVIDENCE
(ECF No. 63)

Plaintiff brought suit in Circuit Court of the First
Circuit, State of Hawaii against his former employers Lockheed
Martin Operations Support, Inc. and Lockheed Martin Corporation,
his supervisors, and other employees. Plaintiff claims that he
was subject to retaliation and wrongful termination, after he
informed a supervisor that certain employees were illegally
gambling at the work site. Plaintiff alleges claims for violation
of the Hawaii Whistleblowers’ Protection Act and intentional
infliction of emotional distress.
Defendants Lockheed Martin Operations Support, Inc. and
Lockheed Martin Corporation removed the action to Federal Court,

asserting that Plaintiff’s claims arise under federal law.
Lockheed Martin Corporation and four employee defendants were
subsequently dismissed from the action.
Plaintiff moved to remand the action to Hawaii State Court.
On May 30, 2014, the Court entered an order denying Plaintiff’s
Motion for Remand. (ECF No. 47.)
Defendants Lockheed Martin Support, Inc. and Richard T. Dunn
now move to dismiss the instant lawsuit, with prejudice, and for
an award of reasonable attorneys’ fees and costs to Defendants as
a sanction for Plaintiff’s intentional spoilation of evidence.
(ECF No. 63.)
Defendants Lockheed Martin Support, Inc. and Richard T.
Dunn’s Motion for Dismissal Sanction (ECF No. 63) is GRANTED.

PROCEDURAL HISTORY

On December 5, 2013, Plaintiff Michael V. Espejo filed a
Complaint in the Circuit Court of the First Circuit of the State
of Hawaii against Lockheed Martin Operations Support, Inc.;
Lockheed Martin Corporation; Richard Dunn; Timothy Ahern; Jo Ann
Viloria; Brando Ladines; Rex Ladines; Ralph Kirk; and Jean J.
Copp.

2

On December 27, 2013, Plaintiff filed a First Amended
Complaint in the Circuit Court of the First Circuit of the State
of Hawaii.
On January 31, 2014, Plaintiff filed a Second Amended
Complaint in the Circuit Court of the First Circuit of the State
of Hawaii. (Notice of Removal Ex. A, ECF No. 1.)
On February 26, 2014, Defendants Lockheed Martin Operations
Support, Inc. and Lockheed Martin Corporation removed the action
to the Hawaii Federal District Court. (ECF No. 1.)
On March 24, 2014, Plaintiff filed a Motion for Remand to
State Court. (ECF No. 18.)
On April 4, 2014, a Stipulation and Order was filed
dismissing, without prejudice, Plaintiff’s claims alleged in the
Second Amended Complaint against Lockheed Martin Corporation;
Timothy Ahern; Jo Ann Viloria; Ralph Kirk; and Jean J. Copp.
The Stipulation and Order also dismissed, without prejudice,
certain claims alleged against the four remaining Defendants,
Lockheed Martin Operations Support, Inc., Richard Dunn, Brando
Ladines, and Rex Ladines, as follows:
Count I (Retaliation and Discrimination in Violation of
Hawaii’s Whistleblower Protection Act, Haw. Rev. Stat. §
378-62): dismissed without prejudice as to Richard Dunn,
Brando Ladines, and Rex Ladines;
Count II (Tortious Interference with Employment and Economic
Opportunities): dismissed without prejudice as to all
remaining Defendants;

3

Count III (Intentional Infliction of Emotional Distress):
dismissed without prejudice as to Defendant Lockheed Martin
Operations Support, Inc.;
Count IV (Negligent and/or Reckless Retention and/or Hiring
and/or Supervision): dismissed without prejudice as to all
remaining Defendants; and
Count V (Ratification, Additional Conduct, and Punitive
Damages): The claims for Ratification and “Additional
Conduct” were dismissed without prejudice as to all
remaining Defendants.1 Plaintiff reserved the right to seek
punitive damages.
The following claims remain:
Count I: Violation of the Hawaii Whistleblowers’ Protection
Act, Haw. Rev. Stat. § 378-62, alleged against Lockheed
Martin Operations Support, Inc; and
Count III: Intentional Infliction of Emotional Distress,
alleged against Defendants Richard Dunn, Brando Ladines, and
Rex Ladines.
(ECF No. 31.)

On April 7, 2014, Defendant Lockheed Martin Operations
Support, Inc. filed an Opposition to the Motion for Remand. (ECF
No. 33.)
On April 14, 2014, Plaintiff filed a Reply. (ECF No. 40.)
On May 16, 2014, the Court held a hearing on the Motion for
Remand.

1

The Second Amended Complaint incorrectly numbers the claim
for Ratification, Additional Conduct, and Punitive Damages as
Count IV.
4

On May 30, 2014, the Court entered an order denying
Plaintiff’s Motion for Remand. (ECF No. 47.)
On August 28, 2014, Defendants Lockheed Martin Operations
support, Inc. and Richard T. Dunn filed MOTION FOR DISMISSAL
SANCTION DUE TO PLAINTIFF’S INTENTIONAL SPOILATION OF EVIDENCE.
(ECF No. 63.)
On September 12, 2014, Plaintiff filed an Opposition to
Defendants’ Motion. (ECF No. 65.)
On October 9, 2014, Plaintiff filed a Supplemental
Opposition. (ECF No. 70.)
On October 23, 2014, Defendants filed a Reply. (ECF No. 74.)
On November 10, 2014, this matter came on for hearing.

BACKGROUND

Plaintiff Michael V. Espejo’s suit arises from allegedly
retaliatory acts that occurred during his employment with
Lockheed Martin Operations Support, Inc. (“Lockheed Martin
Operations”), a federal military contractor. Plaintiff worked for
Lockheed Martin Operations at Pearl Harbor as a Senior Tech IV.
(2d Am. Compl. at ¶ 25, ECF No. 1.)
Plaintiff’s employment with Lockheed Martin Operations was
governed by a Collective Bargaining Agreement between Lockheed
Martin Information Systems & Global Solutions and the
5

International Association of Machinists and Aerospace Workers,
AFL-CIO. (Decl. of Jean J. Copp at ¶ 3, Collective Bargaining
Agreement attached as Ex. A, ECF No. 33.)

Plaintiff’s Reporting of the Alleged Misconduct
Plaintiff alleges that, between July and September 2012,
certain Lockheed Martin Operations employees were engaged in
illegal gambling activity and misrepresenting their time worked.
The gambling was allegedly carried out through the Navy Marine
Corp Intranet (“NMCI”) network, the computer network used by the
Navy and Marine Corps. Plaintiff believed that the activity posed
a security threat to the NMCI network and Navy/Marine Corps
database. (2d Am. Compl. at ¶ 27.)
Plaintiff claims that he anonymously reported the misconduct
to Lockheed Martin Operations’s ethics hotline, but the
misconduct continued. (2d Am. Compl. at ¶ 27.)
On December 17, 2012, Plaintiff alleges that he reported the
misconduct to Supervisor Timothy Ahern. According to Plaintiff,
he requested that his identity be kept confidential to avoid
retaliation. He states that Supervisor Ahern assured him that his
identity would not be revealed, and requested that Plaintiff
report the misconduct to Lockheed Martin Operations’s Human
Resources Agent Teresa Alarcio. (2d Am. Compl. at ¶¶ 28-30.)

6

On the following day, Plaintiff claims he reported the
alleged misconduct to Human Resources Agent Alarcio. Plaintiff
states that he again requested, and was assured, that his
identity would remain confidential. (2d Am. Compl. at ¶ 31.)

Alleged Disclosure of Plaintiff’s Identity as a Whistleblower
According to the Complaint, on December 19, 2012, the day
after Plaintiff made the report to the Human Resources Agent,
Plaintiff began to suffer retaliation from other employees.
Plaintiff alleges that Supervisor Ahern disclosed Plaintiff’s
identity to Defendant Richard Dunn, Plaintiff’s direct
supervisor. He states that Defendant Dunn disclosed Plaintiff’s
identity to other employees. (2d. Am. Compl. at ¶ 34.)

Alleged Retaliation
Plaintiff alleges that, as a result of the disclosure of his
identity, he was subjected to various forms of retaliation for
approximately eight months, resulting in the constructive
termination of Plaintiff.
Plaintiff claims that he was subjected to ongoing social
isolation, verbal and non-verbal threats, and other forms of
harassment by fellow employees. Defendants Brando Ladines and Rex
Ladines are specifically identified as perpetrators of the
harassment. (2d. Am. Compl. at ¶¶ 35-36.)
7

According to Plaintiff, on multiple occasions, he was
subjected to disciplinary action or threatened with disciplinary
action, based on false allegations. (2d Am. Compl. at ¶¶ 38-39,
64-65, and 67.) Plaintiff states that he was required to undergo
a fitness for work evaluation, which was imposed to devise a
pretext to terminate him. (Id. at ¶¶ 47-53.) Defendant Dunn
allegedly attempted to revoke Plaintiff’s security clearance to
enter the work site, without having a legitimate basis to take
such action. (Id. at ¶ 66.)
Plaintiff also claims that supervisors attempted to create
adverse relationships between Plaintiff and other employees by
spreading false information about Plaintiff. (2d Am. Compl. at ¶¶
40, 57-61, 74.) According to Plaintiff, Defendant Dunn would
actively warn other employees against associating with Plaintiff.
(Id. at ¶¶ 53, 56.)
Plaintiff states, in the Complaint, that he reported the
retaliation to Lockheed Martin Operations on multiple occasions.
Lockheed Martin Operations allegedly failed to properly
investigate Plaintiff’s complaints. (2d Am. Compl. at ¶¶ 37, 4146.)

Termination of Plaintiff’s Employment

8

On August 8, 2013, Plaintiff claims that he tendered his
resignation to Lockheed Martin Operations, as he could no longer
tolerate the ongoing harassment and retaliation. (2d Am. Compl.
at ¶ 68.)

Post-Employment Allegedly Retaliatory Conduct
Plaintiff alleges that Lockheed Martin Operations’s
retaliatory conduct continued after his constructive discharge.
Plaintiff claims that Lockheed Martin Operations attempted to
deprive him of his unemployment benefits, by submitting false
information regarding the circumstances of Plaintiff’s
termination. (2d Am. Compl. at ¶¶ 71-73.)
Plaintiff claims that, in January 2014, while applying for a
job, he learned that Lockheed Martin Operations had submitted an
incident report to the Department of Defense security clearance
database, the Joint Personnel Adjudication System (“JPAS”). The
incident report, submitted by Lockheed Martin Operations on or
about December 18, 2013, allegedly resulted in a “red flag” being
placed on Plaintiff’s JPAS clearance. A “red flag” would limit
Plaintiff’s ability to work at certain jobs. (2d Am. Compl. at ¶¶
75-82.)
Plaintiff claims that Lockheed Martin Operations should not
have been able to submit an incident report four months after
Plaintiff’s employment ended. Plaintiff alleges that Lockheed

9

Martin Operations unlawfully failed to complete the JPAS
Separation process, in order to maintain its administrative right
to submit incident reports to JPAS and “red flag” Plaintiff’s
clearance. (2d Am. Compl. at ¶¶ 75-83.)
Facts Relevant to Defendants’ Claim of Intentional Spoilation of
Evidence
Defendants’ Discovery Requests
On March 12, 2014, counsel for the parties met to hold a
Fed. R. Civ. P. 26(f) conference of the parties.

(ECF No. 63-4,

Motion, Declaration of Darin Leong (“Leong Decl.”) ¶ 6.)

During

the conference, defense counsel reminded Plaintiff’s counsel of
Plaintiff’s duty to preserve all evidence, particularly
electronic evidence such as recordings.

(Id.)

On March 19,

2014, Lockheed Martin served Plaintiff with formal discovery
requests. (Motion, at Leong Decl. ¶ 7, Exh. F.)

Lockheed Martin

requested: (1) documents about Plaintiff’s whistleblowing; (2)
documents showing gambling at the facility; (3) Plaintiff’s
surreptitious recordings; (4) documents showing Plaintiff’s job
searches and mitigation of damages; (5) documents proving
Plaintiff’s emotional distress; (6) documents about Plaintiff’s
sexual harassment of a co-worker; (7) Plaintiff’s memos and
diaries; (8) notes and emails about the harassment Plaintiff
allegedly suffered; and (9) communications between Plaintiff and
his Union.

Id.

Plaintiff kept these categories of documents on

his personal computer.

(ECF No. 63–5, Motion at Exh. B, Pl.
10

Depo. at pp. 35-36, 177-85.)

The files on Plaintiff’s personal

computer also included audio recordings made by Plaintiff on his
Sony audio recording device and transferred by him to his
computer.
Defendants’ Contentions
Defendants contend that, while Lockheed Martin’s formal
discovery requests were pending, Plaintiff intentionally deleted
and destroyed massive amounts of relevant evidence.

The evidence

at issue falls into the following categories:
(1) Plaintiff’s personal computer.

Defendants contend that

Plaintiff ran software to permanently erase all information on
his computer, then drilled a hole in his hard drive and threw it
away.

The computer contained Plaintiff’s entire email account,

including emails about his whistleblowing, alleged harassment,
employment, job searches, and communications with witnesses.
(ECF No. 63–5, Motion at Exh. B, Pl. Dep. at pp. 35-36, 177-85.)
Plaintiff’s computer also contained personal daily memos about
the alleged harassment and audio recordings.
415.)

(Id. at pp. 177-85,

Defendants contend that Plaintiff’s computer may have also

contained other relevant evidence that will now never be
recovered.

Defendants requested this information in discovery.

Defense counsel also requested production of Plaintiff’s
computer.

In response, on August 12, 2014, Plaintiff’s counsel

stated that Plaintiff’s computer was destroyed in April of 2014
11

and that Plaintiff ran a program that rewrites data on the hard
drive, drilled into the hard, and then disposed of the computer
in the trash.

(ECF No. 63-12, Leong Decl. ¶ 8, Exh. G.)

(2) Audio recordings taken from Plaintiff’s Sony recorder
and placed on his computer.

Plaintiff used a hard disk Sony

audio recorder to record conversations with people at work. (ECF
No. 63-5, Motion at Exh. B, Pl. Depo. at pp. 177-78, 181-82.)
Plaintiff transferred the audio recordings from the Sony device
to his personal computer.

Plaintiff copied the files that he

deemed relevant to a USB flash drive and produced them to
Defendants in discovery.

Plaintiff produced to Defendants audio

recordings of Defendants and witnesses taken with his Sony
recorder that he had transferred to his computer.
During his deposition, Plaintiff testified that he deleted
many of the recordings from the Sony audio recorder because the
recorder could only hold about two to six hours of audio. (ECF
No. 63-5, Motion at Exh. B, Pl. Depo. at p. 178.)

Some of the

recordings were made in top secret areas of the Navy/Lockheed
Martin torpedo facility. (Pl. Depo. at pp. 42-43, 182-83.)
Defendant Richard Dunn, a Technical Program Manager with Lockheed
Martin, has submitted a declaration stating that Plaintiff’s
recording in secret areas of the United States Navy facility was
a terminable offense, in direct violation of the United States
Navy and Lockheed Martin rules and could potentially subject

12

Plaintiff to military prosecution.

(ECF No. 63-2, Declaration of

Richard T. Dunn at ¶ 6.) Defendants contend that, if not
destroyed, these recordings would have provided additional
support for their position that Lockheed Martin would have had
grounds to terminate Plaintiff had he not resigned.
Following Plaintiff’s deposition, on July 20, 2014, defense
counsel sent Plaintiff’s counsel an email requesting production
of the Sony recorder in order to review the two to six hours of
recordings that were on the Sony recorder. (Leong Decl. at ¶ 3,
ECF No. 63-4, Motion at Exh. C.)

On July 23, 2014 at 12:41 p.m.,

Defendants’ counsel sent Plaintiff’s counsel a follow up email
regarding the request for inspection.

(ECF No. 63-7, Motion at

Exh. D.) In response, Plaintiff’s counsel sent an email saying
that, while he had a different interpretation of the case law
cited by defense counsel in support of the request, he would
recommend to Plaintiff that he produce the recorder for Defendant
Lockheed Martin’s inspection. (Id.)
Defendants contend that just four hours after Defendants’
reminder request for Plaintiff’s computer, at 4:51 p.m. on July
23, 2014, Plaintiff completely erased and reformatted all data on
the recorder.

In support of their contention, Defendants point

to a report prepared by their expert, discussed below, and the
short time period between their second request for production of
the recorder and the destruction of all evidence on it.

13

Defendants also point out that Plaintiff was technologically
adept.

Plaintiff had experience using recording technology and

editing software. (ECF No. 74-2, Supplemental Declaration of
Darin R. Leong (“Supp. Leong Decl.”) at Exh. H, Pl. Depo. at p.
39:2-12.)

He was technically capable of recording on his Sony

recorder, transferring those files to his computer and then to a
USB flash drive, using audio software to edit the recordings,
converting audio files to different formats, and renaming the
files.

(ECF No. 65-1, Espejo Decl. at ¶¶ 5, pp. 12-13.)

In the July 23, 2014 email, Plaintiff’s counsel also
addressed production of Plaintiff’s personal computer for
inspection.

Plaintiff’s counsel stated that he believed

Plaintiff no longer had the computer in his possession and that
he would check to see if Plaintiff had given it away or had
disposed of it in the rubbish. (ECF No. 63-7, Motion at Exh. D.)
Defendants’ Expert Report regarding destruction of all data
on Sony recorder
In support of their argument regarding the Sony recorder,
Defendants point to a forensic analysis of the Sony recorder
performed by their expert, digital forensic examiner, Jerry
Hatchett.

Mr. Hatchett has provided an expert report regarding

his examination of, and conclusions regarding, the Sony recording
device. (ECF No. 63-8, Motion at Exh. E (“Report on Digital
Forensic Examination by Jerry Hatchett”), hereinafter “Hatchett
Report”.)

After examining the device, Mr. Hatchett concluded
14

that the FORMAT function, which was run on July 23, 2014 at 4:51
p.m. destroyed all data and recording on the device. (Hatchett
Report at ¶ 8.)

The destruction occurred just four hours after

defense counsel’s email to Plaintiff’s counsel reminding him of
their request to produce the Sony recorder and Plaintiff’s
counsel’s representation that he would recommend to Plaintiff
that he produce the recorder.
Plaintiff’s Discovery Responses
Plaintiff’s statements about his personal computer during
his deposition
Defendant contends that Plaintiff lied at his deposition
because he said that he still had his computer when, in fact, he
did not.

On July 9, 2014, Plaintiff testified at his deposition

that he was still in possession of the computer and could try to
access certain recordings of key witnesses. (ECF No. 63-5, Motion
at Exh. B, Pl. Depo. at pp. 35-36, 180-81.)

At that time,

Plaintiff had already destroyed his computer.

(ECF No. 65-1,

Declaration of Michael V. Espejo (“Espejo Decl.”) at ¶¶ 7-8.)
Plaintiff’s production of an audio recording of a
conversation between Plaintiff and his supervisor, Tim Ahern

Plaintiff produced a 30 second clip of a recorded
conversation between him and his supervisor, Tim Ahern.
Decl. at ¶ 5.)

(Leong

Plaintiff alleges that the audio recording

provides evidence of his constructive discharge.
Compl. at ¶¶ 67-68.)

(Sec. Am.

At his deposition on July 15, 2014,
15

Plaintiff testified that this recorded conversation may have
involved a discussion of classified information.
Motion at Exh. B, Pl. Depo. at pp. 242-43.)
asked if Plaintiff had edited the recording.

(ECF No. 63-5,

Defense counsel
(Pl. Depo. at p.

246.)

Plaintiff responded: “There’s no edits on any recording.”

(Id.)

Plaintiff also testified that he started and stopped the

recorder precisely when the clip starts and ends.

(Id. at 242-

46.)
Defendants’ Expert Report regarding fragmented audio recording of
Ahern conversation
Defendants submit that a forensic analysis of the clip shows
that Plaintiff edited the audio clip.

In particular, that it was

from a larger clip and pasted in redacted form.
at ¶¶ 9-17.)

(Hatchett Report

Defendants suggest that Plaintiff did so to hide

the fact that he had recorded top secret information or
information that supports Lockheed Martin’s defenses or
undermines Plaintiff’s claims.

In his expert report, Mr.

Hatchett states that he examined the recording of the
conversation with Mr. Ahern.

(Hachett Report at ¶ 9.)

Mr.

Hatchett examined the recording to determine whether it had been
created as described in Plaintiff’s testimony.

(Id.)

Mr.

Hatchett conducted an aural examination in which he listened for
a “click” or “pop” which is often evidence of the beginning or
ending of a recording.
or “pop”.

(Id.)

(Id. at ¶ 10.)

He did not hear a “click”

Mr. Hatchett also conducted a visual
16

examination.

(Id. at ¶ 11.)

He opened the recording in a

software application capable of generating a waveform, a visual
representation, of the recording.

(Id.)

He could not discern

evidence of the beginning or ending of the recording.

(Id.)

According to Mr. Hatchett, the Sony recording device used creates
an artifact any time the recorder is either paused or stopped.
(Id. at ¶ 12.)

The artifact is a brief “click” sound and a

noticeable spike in the waveform.

(Id.)

Mr. Hatchett concluded

that the Ahern recording did not have a stop artifact.
13.)

(Id. at ¶

Mr. Hatchett further concluded that the Plaintiff’s

explanation of how the Ahern recording was created does not match
the forensic evidence and that the Ahern recording was an
incomplete fragment of a larger recording. (Id. at ¶¶ 13, 19.)
Defendants further point out that, due to Plaintiff’s
destruction of his personal computer, they are unable to tell
whether Plaintiff used software on his computer to edit other
recordings.
Plaintiff’s Explanations
Plaintiff contends that in an effort to document the
retaliation he allegedly suffered at work he recorded
conversations with a number of his co-workers and others and
prepared emails to Mr. Ahern and others summarizing the
retaliation he suffered. (ECF No. 65, Pl. Opp. at p. 3.)
Plaintiff contends that he did not engage in the intentional

17

spoilation of evidence because he has, in fact, produced audio
recordings, emails or other communications.

(Id.)

Plaintiff submits his Declaration in support of his
Opposition.

(ECF No. 65-1, Espejo Decl. at ¶¶ 4-5.)

Plaintiff

acknowledges that prior to March 12, 2014, his counsel informed
him of his responsibility to preserve all evidence in his case.
(Id. at ¶ 3.) Plaintiff submits that he has complied and has
produced all evidence to Defendants.

(Id. at ¶ 4.)

(1) Plaintiff’s personal computer. Plaintiff acknowledges
that the personal computer at issue contained information
relevant to this case, in particular, notes and emails, job
applications since his allegedly constructive discharge from
Lockheed Martin, and audio and video recordings that he made in
relation to the case. (Espejo Decl. at ¶ 6.)

In his declaration,

Plaintiff testifies that prior to the due date for production of
discovery, he copied files that he considered relevant to his
case from his personal computer on to a flash drive and provided
it to his counsel.

(Id. at ¶ 5.)

Plaintiff then explains what happened to the personal
computer.

Plaintiff states that it belonged to his mother-in-law

and that he and other family members in his household used it.
(Id. at ¶¶ 6-7.)

The personal computer was used to store family

photographs, prepare personal emails, and to perform financial
transactions. (Id. at ¶ 8.) In April of 2014, the personal

18

computer began to run slowly and failed to start up properly
because of the presence of malware.

(Id. at ¶ 7.)

Plaintiff

explains that this is why his family purchased a replacement
computer. (Id.)

Because of the personal nature of the

information on the computer, Plaintiff ran a software program
that erased all of the data on it before discarding it.
¶ 8.)

(Id. at

He also drilled into the computer’s hard drive so that

sensitive personal data files could not be recovered.

(Id.)

Plaintiff testifies that he has used this same data erasing
procedure for the last seven computers his family has discarded.
(Id.)
Plaintiff next offers an explanation as to his deposition
testimony about the personal computer.

At his deposition,

Plaintiff responded to questions by defense counsel about the
computer as if he still had access to the information on it.

He

admits that he answered questions where he stated that he could
still try to get on the computer to pull files.

(Id. at ¶ 9.)

Plaintiff attempts to make a distinction between a question about
whether he had access to information on the computer versus
whether he still had physical possession of the actual computer.
He claims that, during his July 2014 deposition, he was never
specifically asked if he still had the computer and did not
testify that he still had it.

(Id.)

He explains that he never

intended to mislead anyone into believing that the computer was

19

still in his possession. (Id.) He further explains that this is
why, once he recalled that the computer had been discarded, he
immediately notified his attorney.

(Id.)

Plaintiff appears to make a distinction between the
obligation to preserve all evidence and any requirement that he
keep the computer itself.

In his declaration, Plaintiff states

that he copied files pertaining to his case from his personal
computer onto a flash drive.
copied all files.

Plaintiff does not state that he

He admits that the files copied were the files

that Plaintiff considered relevant to his case.

Plaintiff states

that Defendants did not inform him he should preserve the
computer at any time prior to his discarding of it. (Id. at ¶
10.)

He explains that it never occurred to him that the

Defendants would need to examine the computer itself because, in
his view, he had provided Defendants with all evidence that he
had prepared relating to his case.

(Id.)

Plaintiff submits that

if Defendants had specifically requested that he preserve his
personal computer, he would have readily done so. (Id. at ¶ 11.)
(2) Audio recordings on Plaintiff’s Sony recorder.
Plaintiff’s declaration also addresses Defendants’ allegations
regarding the Sony audio recording.

He declares that to the best

of his recollection, he did not alter the audio recording of his
conversation with Ahern.

(Id. at ¶ 12.)

While maintaining that

he did not alter the audio recording, Plaintiff acknowledges that

20

he “may have edited” it “to remove the discussion of matters not
related to my case.”

(Id. at ¶ 13.)

Plaintiff also acknowledges

that he converted the original electronic format of the audio
files that he produced into a WAV file format.

(Id.)

Consistent

with his deposition testimony, Plaintiff states that he deleted
audio digital files from the Sony audio recorder in order to
maintain free memory space to record. (Id. at ¶ 14.)

Finally,

Plaintiff disputes Defendants’ expert, Mr. Hatchett’s conclusion
that the FORMAT function had been run on the Sony audio recorder.
At least, Plaintiff claims that he, to the best of his
recollection, did not any time run a FORMAT function on the Sony
digital recorder.

(Id. at ¶ 14.)

Plaintiff’s Expert
Plaintiff has retained electronic data forensic expert,
Michael McMurdo, to address the report of Defendants’ expert,
Jerry Hatchett.

Mr. McMurdo, has prepared an expert report,

dated October 3, 2014.

(ECF No. 70-2, Pl. Supp. Opp. at Exh. 1,

Letter from Michael McMurdo to Plaintiff’s counsel (“McMurdo
Report”.)

Plaintiff has not provided the Court with a CV or

resume for Mr. McMurdo.
Mr. McMurdo addresses two assertions in Mr. Hatchett’s
Report: (1) that the format function had been run on Plaintiff’s
Sony recorder, thereby destroying all data and recordings; and

21

(2) that the recorded conversation with Ahern is an incomplete
fragment of a larger conversation.
Mr. McMurdo’s opinion as to destruction of all data on the
Sony recording device
Mr. McMurdo’s assessment concurs with Mr. Hatchett’s
assessment that the format or reformat function had been run on
the device.

(McMurdo Report at p. 2.)

According to Mr. McMurdo,

on the Sony recording device at issue, the reformat function is a
three step process, requiring the user to select settings, select
common settings, and select “reformat”.

(ECF No. 70-1,

Declaration of Counsel at ¶ 3.)
Mr. McMurdo’s opinion as to audio recording of a
conversation between Plaintiff and his supervisor, Tim Ahern
Mr. McMurdo also concurs with Mr. Hatchett’s assessment that
the Ahern recording did not contain a startup or ending click or
blip.

Mr. McMurdo concludes that the beginning and ending of the

file has been removed, but asserts that “there is no way of
knowing whether or what sounds (if any) were removed.”

(ECF No.

70-2, McMurdo Report at p. 2.)
Supplemental Report by Defendants’ Expert
In Reply, Defendants provide a supplemental expert report by
Mr. Hatchett. (ECF No. 74-3, Reply at Exh. I (“Supp. Hatchett
Report”.)

Mr. Hatchett provides a detailed explanation of the

process for reformatting the Sony digital recorder.

Mr. Hatchett

explained that the process for deleting a single file is very

22

different from the process for reformatting the entire device and
could not be easily confused.

He explains that, contrary to Mr.

McMurdo’s statement, 18 button presses are required to reformat
the digital recorder.

(Supp. Hatchett Report at ¶ 18.)

In

contrast, to delete a single recording requires on 5 button
presses. (Id.)

Mr. Hatchett has provided the Court with a video

demonstration of these two processes.

(ECF No. 74-4, Reply at

Exh. J.)
Mr. Hatchett also reviewed the other recordings Plaintiff
made with his Sony recorder and transferred to his computer prior
to providing them to Defendants.

Plaintiff produced 37

recordings from the Sony recorder.

It is undisputed that these

recordings contain evidence relevant to this case.

Mr. Hatchett

concluded that 27 of these recordings were edited in the same
manner as the Ahern recording.
12.)

(Supp. Hatchett Report at ¶¶ 8-

The extensive process Mr. Hatchett used to examine these

recordings and reach this conclusion is detailed in his
supplemental report.

Mr. Hatchett examined 5 other recordings

produced by Plaintiff made with his smart phone, a Samsung Galaxy
S3 device, and concluded that 4 of those had also been edited or
altered.

(Supp. Hatchett Report at ¶¶ 13-14.)

Mr. Hatchett also explains that Plaintiff did not need to
convert the audio files to a different format on his computer
(from the original format to a .WAV format) in order to play them

23

back.

(Supp. Hatchett Report at ¶ 19.)

Mr. Hatchett explains

that the Sony device records in .WAV format, that it was
configured to record in this format when he received it for
inspection, and that the 10 unaltered files produced by Plaintiff
were in .WAV format.

(Id.)

Mr. Hatchett concludes that there

was no reason for Plaintiff to convert or otherwise alter the
files in order to play them back.

(Id.)

Summary of Relevant Facts
Disposal of personal computer
Plaintiff destroyed all data on, and disposed of, the
personal computer on which he maintained relevant files, after
this litigation began and after counsel had told him to preserve
all evidence.

Plaintiff explains that Defendants did not

specifically request that he preserve his computer before he
destroyed it and that he thought that he was complying with the
requirement to preserve evidence by saving the files that he
thought were important.

Defendants argue that Plaintiff’s

intentional destruction of his computer is evidence of bad faith.
Plaintiff has acknowledged that he maintained relevant evidence
on his computer. Defendants now have no way of obtaining and
examining the original data.
Deletion of all data from Sony recorder
Plaintiff’s expert and Defendants’ expert concur that the
deletion of all data and files on the Sony recording device was

24

due to execution of the format or reformat function.

Plaintiff

testifies that he does not remember reformatting the device.
Defendants argue that it must have been Plaintiff who deleted the
data because of the timing of when the data was deleted.

All

data and recordings were deleted from the device approximately
four hours after defense counsel reminded Plaintiff’s counsel
that Defendants had requested production of the device and
Plaintiff’s counsel said that he would contact Plaintiff and
recommend that he produce the device.

In his declaration,

Plaintiff does not offer an alternative explanation of how all
data was deleted.

Plaintiff’s counsel argues that it is highly

likely Plaintiff may have accidentally reformatted the device
while intending only to delete the most recent recording of a
visit with one of his doctors.

Defendants rebut this through

expert testimony contrasting the process for deleting a file with
reformatting the entire device.
Fragmented recording of Plaintiff’s conversation with Ahern
After examining the audio file, both Plaintiff’s expert and
Defendants’ expert concur that the recording of Plaintiff’s
conversation with Ahern is a fragment of the original. There is
no genuine dispute that Plaintiff edited the recording. In his
deposition, Plaintiff states that he does not recall altering the
recording, but that he may have edited it to remove the
discussion of matters not related to his case.

25

STANDARD OF REVIEW
“Dismissal is an available sanction when ‘a party has
engaged deliberately in deceptive practices that undermine the
integrity of judicial proceedings’ because ‘courts have inherent
power to dismiss an action when a party has willfully deceived
the court and engaged in conduct utterly inconsistent with the
orderly administration of justice.’” Leon v. IDX Systems Corp.,
464 F.3d 951, 958 (9th Cir. 2006)(quoting Anheuser–Busch, 69 F.3d
at 348 (internal quotation marks and citations omitted). “Before
imposing the ‘harsh sanction’ of dismissal, however, the district
court should consider the following factors: ‘(1) the public's
interest in expeditious resolution of litigation; (2) the court's
need to manage its dockets; (3) the risk of prejudice to the
party seeking sanctions; (4) the public policy favoring
disposition of cases on their merits; and (5) the availability of
less drastic sanctions.’” Id. (quoting Anheuser–Busch, 69 F.3d at
348) (footnote omitted).
The district court need not make explicit findings regarding
each of these factors. See United States ex rel. Wiltec Guam,
Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603 (9th Cir. 1988).
But, “a finding of ‘willfulness, fault, or bad faith’ is required
for dismissal to be proper.

Leon, 464 F.3d at 958 (quoting

Anheuser–Busch, 69 F.3d at 348) (citation omitted).

26

The district

court must also consider “less severe alternatives” than outright
dismissal. Wiltec Guam, 857 F.2d at 604.

ANALYSIS
I.

Intentional Destruction of Evidence in Bad Faith
“A party’s destruction of evidence qualifies as willful

spoliation if the party has ‘some notice that the documents were
potentially relevant to the litigation before they were
destroyed.’” Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th
Cir. 2006) (quoting United States v. Kitsap Physicians Serv., 314
F.3d 995, 1001 (9th Cir. 2002) (emphasis added) (internal
quotation marks and citation omitted).

“Moreover, because ‘the

relevance of ... [destroyed] documents cannot be clearly
ascertained because the documents no longer exist,’ a party ‘can
hardly assert any presumption of irrelevance as to the destroyed
documents.’” Id. (quoting Alexander v. Nat'l Farmers Org., 687
F.2d 1173, 1205 (8th Cir. 1982)).
A.

Plaintiff Willfully Spoiled Relevant Evidence

The Court finds that Plaintiff engaged in willful spoilation
of evidence.
1.

Plaintiff’s destruction of personal computer

It is undisputed that the computer used and destroyed by
Plaintiff contained relevant evidence and that Plaintiff knew
this.

(ECF No. 65-1, Espejo Decl. at ¶ 6.)

27

Yet, Plaintiff

deleted all files from, and physically destroyed, the computer in
April 2014.

Plaintiff did so four months after he initiated the

lawsuit and one month after he received Defendant Lockheed
Martin’s discovery requests.
The duty to preserve evidence is triggered as a matter of
law once a party “knows or reasonably should know the evidence is
potentially relevant to litigation when the destruction of that
evidence prejudices the opposing party.”

United States ex rel.

Berglund v. Boeing Co., 835 F.Supp.2d 1020, 1050 (D. Ore. 2011).
Plaintiff acknowledges that he knew he had an obligation to
preserve evidence.

Plaintiff knew that his computer contained

relevant evidence. (Espejo Decl. at ¶ 6.)

In fact, Plaintiff

copied some files from his computer onto his flash drive and
provided it to his counsel before destroying the computer.
(Espejo Decl. at ¶ 5.)

Plaintiff also had actual notice to

preserve evidence on the computer.

Plaintiff’s counsel

instructed him to preserve evidence both before the case began
and on March 12, 2014.

(ECF No. 65, Pl. Opp. at p. 3.)

Lockheed

Martin served Plaintiff with document requests on March 19, 2014.
(ECF No. 14.)

The document requests specifically requested

Plaintiff to preserve evidence on his electronic devices.
Lockheed Martin’s March 19, 2014 document requests included
within the definition of “documents”, among other things,
computer or data processing card, computer or data processing

28

disk, computer-generated matter, and tape or phonograph
recording.

(ECF No. 63-11, Motion at Exh. F, Lockheed Martin’s

First Request for Production of Documents at 2-4.)

Lockheed

Martin also specifically requested information on Plaintiff’s
electronic devices, including his computer and Sony recorder.
Defendant’s request was for unedited video, tape, digital or
other audio or visual recordings.

(Id. at Requests Nos. 24-28,

48-52.)
Plaintiff argues that he was not expressly told to preserve
the computer itself at the time he destroyed it.

Whether or not

he was expressly told to preserve the computer itself, Plaintiff
had ample notice of his obligation to preserve all evidence on
it.

Plaintiff selected evidence which he believed was relevant

and then knowingly deleted the remaining data and physically
destroyed the computer.

Plaintiff is not permitted to

unilaterally chose what evidence he produces in discovery. See
Leon, 464 F.3d at 956-957

(“[The plaintiff did not have the

authority to make unilateral decisions about what evidence was
relevant in this case.”). Plaintiff destroyed his computer in the
midst of ongoing discovery. Such conduct supports a finding of
bad faith.
2.

Plaintiff’s editing of the Ahern recording and
other recordings

Plaintiff admits that he may have edited the Ahern
recording. (Espejo Decl. at ¶ 12.) Plaintiff explains that he
29

would have done so to remove the discussions not relevant to the
case.

(Id.)

Plaintiff offers no alternative explanation as to

why the Ahern recording is not a complete recording.

31 other

audio recordings produced by Plaintiff were also edited.
Plaintiff’s declaration does not address the other audio
recordings (raised in Defendants’ reply), but there is good
reason to believe that it was also Plaintiff who edited these
recordings.
As discussed above, it was not within Plaintiff’s discretion
to determine which portions of the recordings would be relevant
to the case.

There is no way to recover the complete recordings.

The recordings at issue are recordings of Plaintiff’s
interactions with other Lockheed Martin employees.

In this case,

Plaintiff claims that he was retaliated against for
whistleblowing. The recordings contain evidence relevant to
Plaintiff’s claims and Defendants’ defenses.
There is also evidence of bad faith. During his deposition,
Plaintiff testified that he did not edit the Ahern recording.
(ECF No. 63-5, Motion at Exh. B, Pl. Depo. at 236:16.)
Plaintiff’s statement was not true.

Plaintiff attempts to

correct this by explaining in his declaration that he may have
deleted a portion of the Ahern recording that he did not deem
relevant.

He then tries to pass off the edits as immaterial.

Plaintiff’s testimony, during his deposition, that he did not

30

edit any recordings, including the other 31 recordings, is not
credible.

The fact that he now admits he may have deleted

portions of the Ahern recording, combined with the lack of any
other plausible explanation, strongly suggests that it was
Plaintiff who edited the other recordings.

The evidence supports

the Court’s finding that, after secretly editing the recordings,
Plaintiff attempted to cover up his conduct by falsely testifying
that he did not edit any recordings.
faith.

This is evidence of bad

The Court finds that Plaintiff willfully spoiled evidence

in bad faith.
3.

Deletion of all data on the Sony recorder

On July 23, 2014, Defendants’ counsel reminded Plaintiff’s
counsel of their request to produce the recorder.

Plaintiff’s

counsel responded that he would contact Plaintiff and recommend
that he produce the Sony recorder.

Both Plaintiff’s and

Defendants’ experts agree that there was removal of data from the
computer.

They also agree it was caused by performing a reformat

function.

The Sony recorder was reformatted on July 23, 2014,

just four hours after defense counsel reminded Plaintiff’s
counsel about Defendants’ request that Plaintiff produce the
recorder.

As Mr. Hackett explains, performing the reformat

function requires 18 steps that are very different than just the
5 steps necessary to delete a file.

31

The Court does not find credible the contention that
Plaintiff unintentionally reformatted the Sony recorder. Also,
incredulous is Plaintiff’s testimony that he does not recall
reformatting the Sony recorder.

It is highly likely that it was

Plaintiff who removed all data from the device by reformatting
it.

The evidence shows that Plaintiff had experience using

recording technology and editing software. (ECF No. 74-2,
Supplemental Declaration of Darin R. Leong (“Supp. Leong Decl.”)
at Exh. H, Pl. Depo. at p. 39:2-12.)

Plaintiff was technically

capable of recording on his Sony recorder, transferring those
files to his computer and then to a USB flash drive, using audio
software to edit the recordings, converting audio files to
different formats, and renaming the files.
Decl. at ¶¶ 5, 12-13.)

(ECF No. 65-1, Espejo

Plaintiff’s explanation that he

accidentally reformatted the device and that this accidental
reformat happened the very day that his counsel contacted him
about producing the device to Defendants is not plausible.

The

Court finds that Plaintiff engaged in the willful spoilation of
evidence and attempted to cover up his actions.
This case is substantially similar to the Ninth Circuit’s
decision in Leon, 464 F.3d 951.

Leon also involved a claim for

wrongful termination based on whistleblower retaliation. In that
case, the plaintiff produced his laptop for examination pursuant
to a discovery request.

A forensic examination of the

32

plaintiff’s laptop revealed that the laptop’s hard drive had been
intentionally deleted. Id. at 956.

In his deposition, the

plaintiff, in Leon, admitted that he deleted personal files and
claimed that he was merely negligent in removing other evidence.
Id.

The evidence, however, showed that the plaintiff ran a

wiping program despite being on notice that the laptop contained
files relevant to the lawsuit.

Id. at 952. The Ninth Circuit

upheld the district court’s determination that the plaintiff had
willfully spoiled relevant evidence and that such conduct
prejudiced defendants. Id. at 960-61; see also Volcan Group, Inc.
v. Omnipoint Communications, Inc., 552 Fed.Appx. 664 (9th Cir.
2014) (upholding district court’s dismissal due to plaintiff’s
spoilation of evidence).
The evidence of willful spoilation is even stronger in this
case than in Leon.

In this case, Plaintiff not only deleted all

files from his computer and destroyed it, he also destroyed all
the data on his Sony recorder.

He secretly edited the Ahern

recording along with at least 27 other recordings.

Plaintiff,

unlike the plaintiff in Leon, attempted to cover up his conduct
by lying under oath at his deposition.
II.

Risk of Prejudice to Defendants
“The prejudice inquiry ‘looks to whether the [spoiling

party's] actions impaired [the non-spoiling party's] ability to
go to trial or threatened to interfere with the rightful decision

33

of the case.’” Leon, 464 F.3d at 959 (quoting Wiltec Guam, 857
F.2d at 604 (citation omitted)); see Anheuser–Busch, Inc. v.
Natural Beverage Distributors, 69 F.3d 337, 354 (9th Cir. 1995)
(finding prejudice when a party's refusal to provide certain
documents “forced Anheuser to rely on incomplete and spotty
evidence” at trial.)
A.

Plaintiff Has Severely Prejudiced Defendants by
Destroying Highly Relevant Evidence

Plaintiff’s destruction of relevant evidence has severely
prejudiced Defendants.

In this case, Plaintiff claims that he

was subject to retaliation and wrongful termination, after he
informed a supervisor that certain employees were illegally
gambling at the work site.

To prevail on his claims, Plaintiff

has the burden of proving that he engaged in a whistleblowing
activity, and that, as a result, he was retaliated against.
Defendants’ theory of the case is that Plaintiff had plans to
resign at least a few months before his allegedly constructive
discharge.

In defending the case, Defendants would also argue

that Plaintiff has not suffered damages because Lockheed Martin
had grounds to terminate him before his allegedly constructive
discharge.

The deleted recordings or portions of the recordings

contained classified information.

(Pl. Depo. 242-43.)

According

to Defendants, this is a direct violation of government rules
which could have subjected him to criminal prosecution.

34

During his deposition, Plaintiff acknowledged that documents
he kept on the computer and the recordings he made with the Sony
recorder were relevant evidence.

Plaintiff’s computer, for

instance, contained his entire email account, including emails
complaining about harassment which he never produced, his plans
to resign from employment, and job applications to other
employers.

(Pl. Depo. at 34, 36, 165, 254-55.)

Defendants have also provided a detailed list of the
relevant documents that were or could have been found on the
computer or Sony recorder. (ECF No. 74, Reply at pp. 20-21.)
Such relevant evidence includes recordings that could have shown
Plaintiff’s work conditions were not intolerable and deleted
recordings or portions of recordings containing classified
information in direct violation of government rules and
potentially subjecting Plaintiff to criminal prosecution.

(Id.)

Defendants also suspect that Plaintiff’s computer might have
contained evidence of illegal gambling.

(Id.)

The very conduct

about which Plaintiff allegedly blew the whistle.

As a basis for

their suspicion, Defendants point out that when, during
Plaintiff’s deposition, defense counsel asked Plaintiff if he
engaged in illegal gambling, Plaintiff invoked the Fifth
Amendment.

(ECF No. 63-5, Pl. Depo. at p. 70-71.)

There is no way of recreating the computer or the audio
files that have been destroyed.

As such, Plaintiff’s “discovery

35

violations make it impossible ... to be confident that the
parties will ever have access to the true facts.”

Conn. Gen.

Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1097
(9th Cir. 2007) (citation omitted).
Other courts have found dismissal to be an appropriate
remedy in similar circumstances.

See Volcan Group, Inc. v.

Omnipoint Communications, Inc., 552 Fed.Appx. 644 (9th Cir.
2014), U.S. ex rel. Berglund v. Boeing Co., 835 F.Supp.2d 1020,
1051 (D.Or. 2011)(by discarding the hard drives from his home
computer, plaintiff impaired defendant's ability to obtain
potentially relevant and discoverable communications and
dismissal of retaliation claim was appropriate sanction).
III.

Availability of Less Drastic Sanctions
In considering the availability of less drastic sanctions

before dismissing a party's case, the district court must discuss
the feasibility of less drastic sanctions and explain why such
alternate sanctions would be inappropriate.

Leon, 464 F.3d at

960. If applicable, the district court must also implement
alternative sanctions before ordering dismissal and warn the
party of the possibility of dismissal before ordering dismissal.
Id.
A.

Possible alternative sanctions

The Court finds that less drastic sanctions would not

36

sufficiently compensate for Plaintiff’s widespread destruction of
evidence.

The possible discovery sanctions set out in Fed. R.

Civ. P. 37(b)(2)(A)(i)-(vii) provide guidance as to possible
alternative actions: (i) directing that the matters embraced in
the order or other designated facts be taken as established for
purposes of the action, as the prevailing party claims;(ii)
prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence; (iii) striking pleadings in whole or in
part; (iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part; (vi)
rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii).

Fed. R. Civ. P.

37(b)(2)(A)(iii). Subsections (iv), (vi) and (vii) are
inapplicable based on the present facts. Defendants are seeking
the relief provided in subsection (v) - dismissal.

Subsections

(i) and (ii) provide the only possible alternatives for the Court
to consider.
The sanction of designating that certain facts be taken as
true (Fed. R. Civ. P. 37(b)(2)(A)(i)) does not provide a viable
option.

It is not possible to fashion an order directing certain

facts be taken as true that would not essentially amount to a

37

directed verdict for the Defendants.

Even if the Court fashioned

a jury instruction providing a rebuttable presumption in
Defendants’ favor, Defendants would still suffer difficulties in
rebutting any evidence presented by Plaintiff in attempting to
overcome the presumption.

See Leon, 464 F.3d at 960.

The remedy in Fed. R. Civ. P. 37(b)(2)(A)(ii) - prohibiting
Plaintiff from supporting designated claims or opposing
designated defenses – presents a similar problem.

Here,

Plaintiff has destroyed a significant amount of evidence central
to his case. Prohibiting Plaintiff from presenting his
whistleblower claim would be tantamount to dismissing the case.
It would also not be a workable remedy for the Court to prevent
Plaintiff from challenging Defendant Lockheed Martin’s defense
that Plaintiff was not constructively discharged, but rather, had
plans to quit months before he resigned.

If Lockheed Martin

prevailed on this defense, it would win the case.

Lockheed

Martin, however, is prevented from building this defense because
Plaintiff has destroyed the relevant evidence.

Upon

consideration of the possible alternative remedies, the Court
finds that they are either unavailable or inadequate in this
case.
B.

Implementation of alternative sanctions

The second consideration is whether the district court can,
or has, implemented alternative sanctions before ordering

38

dismissal.

The Court, as did the Court in Leon, finds that the

second consideration does not apply.

Plaintiff has destroyed the

evidence before the Court could “compel discovery or otherwise
order ‘lesser sanctions.’” Leon, 464 F.3d at 960.
C.

Warning of dismissal sanction

The third consideration is whether the district court can,
or has, warned the party of the possibility of dismissal before
ordering dismissal.

As with the second consideration, and also

as the court found in the Leon case, the third consideration does
not apply.

The evidence has already been destroyed.

Any warning

by the Court that Plaintiff’s case would be dismissed if he did
not produce the evidence would be futile.

See Leon, 464 F.3d at

960; see Malone v. U.S. Postal Service, 833 F.2d 128, 133 (9th
Cir. 1987)(failure to warn is unnecessary in certain
circumstances).
IV.

Public Policy Considerations and Court’s Need to Manage Its
Docket
The public policy in favor of disposing of cases on their

merits weighs against dismissal as a sanction.

On the facts

before the Court here, this factor is not sufficient to outweigh
the other factors favoring dismissal. See Leon, 646 F.3d, 960-61.
Given the extensive spoilation of relevant evidence by Plaintiff,
it would not be possible to fairly evaluate this case on the
merits.

See Boeing Co., 835 F.Supp.2d at 1053-54 (public policy

favoring resolution on the merits was outweighed by plaintiff’s
39

continuing misconduct which made a fair resolution on the merits
impossible).

Public policy does not favor maintaining a court

action or holding a trial when a party’s misconduct “threaten[s]
to interfere with the rightful decision of the case.” Wyle v.
R.J. Reynolds Indus., Inc., 709 F.2d 585, 591 (9th Cir. 1983).
The Court’s need to manage its docket and the public’s
interest in expeditious resolution of litigation also favors
dismissal.

Time and judicial resources have already been spent

on a motion for dismissal in this matter and resolving spoilation
issues.

See Leon, 464 F.3d at 958, n.5 (noting that public

interest considerations weighed in favor of dismissal where
“there was ample evidence of the time and resources spent in
investigating and resolving spoilation issues”); see Malone, 833
F.2d at 131 (fact that district court was prevented from adhering
to trail schedule supported dismissal).

Proceeding to trial with

the case would require additional time and judicial resources in
order to address Plaintiff’s intentional destruction of relevant
evidence.

CONCLUSION

Defendants Lockheed Martin Operations Support, Inc. and
Richard T. Dunn’s MOTION FOR DISMISSAL SANCTION DUE TO

40

PLAINTIFF’S INTENTIONAL SPOILATION OF EVIDENCE (ECF No. 63) is
GRANTED.

This case is DISMISSED WITH PREJUDICE as to all remaining
Defendants.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 21, 2014.

/s/ Helen Gillmor
Helen Gillmor
United States District Judge

MICHAEL V. ESPEJO v. LOCKHEED MARTIN OPERATIONS SUPPORT, INC.;
RICHARD T. DUNN; BRANDO LADINES; REX LADINES, Civ. No. 14-00095
HG-RLP; Order GRANTING Defendants Lockheed Martin Operations
Support, Inc. and Richard T. Dunn’s Motion for Dismissal Sanction
Due to Plaintiff’s Intentional Spoilation of Evidence (ECF No.
63)

41