Lee v. Trees, Inc. et al

Filing 117

OPINION and ORDER - The court GRANTS Defendants' Motion for Terminating Sanctions 93 and dismisses Lee's claims with prejudice. DATED this 6th day of November, 2017, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

SARAH LEE,

Case No. 3:15-cv-0165-AC
Plaintiff,

OPINION AND ORDER

v.
TREES, INC., a Delaware corporation, and
PAUL SIMS, an individual,
Defendants.
_____________________________________
ACOSTA, Magistrate Judge:
Plaintiff Sarah Lee (“Lee”) filed this lawsuit against her employer, Defendant Trees, Inc.
(“Trees”), and her supervisor, Defendant Paul Sims (“Sims”) (collectively, “Defendants”), alleging
employment discrimination and sexual harassment. Before the court is Defendant Trees’s Motion
( ECF No. 93) for Terminating Sanction (“Motion”), in which Defendant Sims joins. (ECF Nos.

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103, 104.)1 For the reasons detailed below, Defendants’ Motion is granted.2
Background
Lee was working as a flagger for Trees when, in May 2013, she and Sims began a consensual
romantic relationship. (Compl. at 3; Declaration of Courtney Angeli, (“Angeli Decl.”) Ex. B at 2.)
According to Lee, when she sought to end the relationship several weeks later, Sims made numerous
threats against her job unless she continued the sexual relationship. (Compl. at 3; Angeli Decl. Ex.
B at 2–3.) This alleged harassment continued approximately from June 2013 until November 2013,
when Lee permanently ended the relationship. (Compl. at 3–4.) Ten days later, on December 3,
2013, Trees terminated Lee’s employment. (Id. at 4.)
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”). (Declaration of Maureen Klayman, (“Klayman Decl.”) Ex. A at 8–9.) The complaint
alleged verbal sexual harassment by two of Lee’s former co-workers. (Id.) According to the
complaint, Lee reported the disparaging comments to Sims, who then disciplined the co-workers,
but the harassment continued. (Id.) Trees denied the allegations. (Klayman Decl. at ¶3.)
In March 2014, Lee filed another administrative complaint with BOLI and the EEOC.
(Klayman Decl. Ex. B at 5–7.) This second complaint detailed quid pro quo sexual harassment by
Sims and Trees related to Sims and Lee’s relationship and the alleged threats at its close, a hostile
work environment caused by slurs from another Trees employee, and that her termination was

1

The Defendants requested oral argument on the pending Motion. The court finds the Motion
appropriate for disposition without oral argument pursuant to LR 7-1(d)(1) and denies this request.
2

The parties have consented to jurisdiction by magistrate judge pursuant to 28 U.S.C.
§ 636(c)(1).
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retaliatory. (Id. at 6–7.) Again, Trees filed a response denying the allegations. (Klayman Decl. at
¶5.)
While employed by Trees, Lee had “three or four,” or “maybe five” cell phones, all of which
were capable of sending and receiving text messages. (Declaration of Louis A. Santiago (“Santiago
Decl.”) Ex. E at 51.) Lee told the BOLI investigator assigned to both complaints that she “ha[d] text
messages” in which she “asked [Sims] to stop the relationship” that she could provide for review.
(Angeli Decl. Ex. B at 6.) More than a month later, on September 16, 2014, Lee faxed printed copies
of several purported text messages to her then-attorney, Eric Fjelstad, who forwarded the copies to
BOLI. (Angeli Decl. Ex.C; Santiago Decl. Ex. C at 255–57) On September 29, 2014, Lee provided,
and Fjelstad forwarded, additional print copies of yet more alleged text messages Lee claimed
supported her allegations. (Santiago Decl. Ex. D at 259–60.)
Based at least in part on the text messages, BOLI issued two respective Notices of Substantial
Evidence Determination and notices of her right to file civil suit on the matters. (Klayman Decl.
Exs. C, D, E, F.) In reaching those determinations, the BOLI investigator noted “Sims has stated that
[Lee] may have modified or created some of the text messages she provided . . . . However, he was
not able to provide any evidence to dispute the authenticity of the text messages.” (Klayman Decl.
Ex. C at15.)
In January 2015, Lee filed this lawsuit in which she alleges Title VII gender discrimination
and state law claims. (Compl. at 5–10.) Defendants answered, denying the allegations, Sims’s initial
consensual relationship with Lee notwithstanding. (Def. Trees’s Answer, ECF No. 6; Defendant
Sims’s Am. Answer, ECF No. 37.) During initial disclosures, Trees requested that Lee provide her
supporting materials “in electronic form in their native format,” but Lee produced only the same
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print copies provided to BOLI and, after a second request for production, only one of her four or five
cell phones. (Motion at 10 n.46; Santiago Decl. at ¶7; Angeli Decl. at ¶7.)
Defendants retained Joel Brillhart, a certified forensic computer examiner, to inspect and
analyze Lee’s cell phone. Brillhart holds a B.S. from Central Washington University, owns and
operates a forensic computer and cell phone analysis consultancy, and previously served as a
Certified Computer and Cell Phone Forensics Examiner on the FBI’s Domestic Terrorism and Cyber
Squad during his 22-year tenure as a Special Agent for the FBI. After leaving the FBI, Brillhart
provided independent forensic computer services in Iraq to the U.S. military and then assumed his
current occupation, owner of Professional Forensic Services LLC, in which capacity he has been
retained in approximately 300 cases to examine computer and cell phones. Brillhart also is a current
member of the International Association of Computer Investigative Specialists, which requires as
a condition for membership and certification continuing education and a proficiency examination
every three years. (Declaration of Joel Brillhart (“Brillhart Decl.”) at ¶¶ 3–11; Ex. A.)
Brillhart’s forensic examination of Lee’s cell phone revealed that many of the text exchanges
for which Lee provided printed versions had been fabricated. (Id. at ¶¶ 17–33.) In his declaration,
Brillhart describes the methodology and analysis by which he obtained the data upon which his
conclusions are based. He created a “forensic Physical image” of the phone to extract a “bit-by-bit
copy of the phone’s [] memory,” including all text messages, call logs, files, and deleted data. (Id.
at ¶¶13-20.) Inspection of the forensic image found at least 44 of the text messages that had been
included in the print copies Lee provided actually resided in the phone’s “unsent” folder. (Id. at
¶15.) These messages contained time-stamps not from mid-2013, the period of the alleged
harassment, but from almost a year later, September 10–12, 2014, the date just before Lee’s printed
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versions of the texts were sent to the BOLI investigator. (Id. at ¶¶15–16; Ex. B at 1–4.) Several
other of the messages supposedly sent by Sims and contained in Lee’s printed text conversations
were in fact real texts sent from Sims’s phone during the 2013 relationship, but they appeared to be
only “fragment[s]” of other, longer text conversations. (Id. at ¶¶ 21–25, 33.) Brillhart therefore
deduced at least seven of the discrete text exchanges detailed in the printed copies provided by Lee
were not “authentic [] message strings,” but rather excerpts of real text messages “interspersed” with
unsent messages drafted on Lee’s phone. (Id. at ¶33.) This conclusion is consistent with Sims’s
repeated contentions that he never sent or received the text messages that Brillhart subsequently
found in the “unsent” folder in Lee’s phone. (Declaration of Paul Sims at ¶2.)
In January 2016, after Brillhart produced his report, the parties began settlement negotiations.
(See Findings and Conclusions on Def. Sims’s Motion to Enforce Settlement Agreement, ECF No.
112 at 4–7.) These discussions culminated in March 2016 when Lee informed Fjelstad she no longer
wished to settle. (Id. at 7.)3 Shortly thereafter, Fjelstad withdrew as Lee’s counsel. (Notice of
Attorney Withdrawal, ECF No. 34; Granted, ECF No. 36.)
Based on the accusations of evidence falsification described above, Defendants now move
for terminating sanctions. Defendants seek dismissal of Lee’s claims with prejudice or, in the
alternative, lesser issue, evidentiary, and instructional sanctions against Lee. (Motion at 5–6.) Lee
denies the allegations of evidentiary misconduct and argues sanctions are unwarranted, but she
contends that should the court find the evidence “suspect,” lesser sanctions suffice. (Pl.’s Response
Brief, ECF No. 100 at 2.)

3

This court has since enforced the settlement agreement between Lee and Sims, and all
claims as to Sims have been finally adjudged. (ECF No. 112.)
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Legal Standards
A party has a duty to preserve evidence when it knows or reasonably should know the
evidence is potentially relevant to litigation and when the destruction of that evidence prejudices the
opposing party. See Kitsap Physicians Serv., 314 F.3d at 1001 (A party “engage[s] in spoliation of
[evidence] as a matter of law only if they had some notice that the [evidence was] potentially
relevant to . . . litigation before [it was] destroyed.”). “The duty to preserve material evidence arises
not only during litigation but also extends to that period before the litigation when a party reasonably
should know that the evidence may be relevant to anticipated litigation.” World Courier v. Barone,
No. C 06–3072 THE, 2007 WL 1119196, at *1 (N.D. Cal. Apr. 16, 2007) (quotations and citation
omitted); Performance Chevrolet, Inc. v. Market Scan Info. Sys., No. CV–04–0244–BLW, 2006 WL
1042359, at *1 (D. Idaho Apr. 18, 2006) (“The majority of courts have held that pre-litigation
destruction can constitute spoliation when litigation was ‘reasonably foreseeable’ but not where it
was ‘merely possible.’ ” (citations omitted)).
Courts have inherent powers to manage their own affairs “so as to achieve the orderly and
expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). These
inherent powers include the inherent authority to impose sanctions based on a party’s failure to
preserve relevant evidence. U.S. ex rel. Berglund v. Boeing Co., 835 F. Supp. 2d 1020, 1049 (D. Or.
2011). Available sanctions under the court’s inherent authority include: (1) excluding spoiled
evidence; (2) admitting evidence of the circumstances of the destruction or spoliation; or (3)
instructing the jury that it may infer that the spoiled or destroyed evidence would have been
unfavorable to the responsible party. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993).
The severe sanction of dismissal is available when “a party has engaged deliberately in
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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 Sys. Corp, 464
F.3d 951, 958 (9th Cir. 2006)(citation and internal quotations omitted). Termination sanctions can
be implemented when the court finds a party has engaged abusive litigation practices. TeleVideo
Sys., Inc. v. Heidenthal, 826 F.2d 915, 916 (9th Cir. 1987). “Abusive practices” include perjury,
filing false pleadings, and falsifying evidence. See Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488
(9th Cir.1991) (affirming dismissal for falsifying a deposition); TeleVideo Sys., Inc., 826 F.2d at 917
(affirming entry of default judgment for perjury and false pleadings); Sell v. Country Life Insurance
Company, 189 F.Supp.3d 925, 944 (D. Ariz., June 1, 2016) (dismissing a case for presenting false
deposition and hearing testimony to create a “false narrative”); and Stewart v. RockTenn CP, LLC,
No. 3:13-CV-2147-AC, 2016 WL 3566731, at *3 (D. Or. June 29, 2016) (terminating a case for
submitting “sworn statements to the court that misrepresented the facts of the case”).
Before a district court imposes the sanction of dismissal, it must weigh several 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.” Anheuser–Busch, Inc. v.
Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995). The harsh sanction of dismissal must
be supported by a finding of “willfulness, fault, or bad faith.” Leon, 464 F.3d at 958. Lastly, due
process concerns require a relationship between the sanctioned party’s misconduct and the matters
in controversy such that the transgression “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). See also Phoceene
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Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir. 1982) (default entry violated
due process where the sanctioned party’s deception was wholly unrelated to the merits of the
controversy).
Discussion
I.

Evidentiary Issue.
Because the authenticity of the text evidence rests largely on Brillhart’s expert testimony, the

court first considers whether the testimony is admissible and reliable under the appropriate
evidentiary rules. Under Federal Rule of Evidence 702, the district court is tasked with the gatekeeping function mandated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
to determine the admissibility of expert witness testimony. Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 141, 147 (1999). This typically “entails a preliminary assessment of whether the reasoning
or methodology underlying the testimony is scientifically valid and whether that reasoning or
methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592–93 (footnote
omitted).
Lee does not challenge Brillhart’s qualifications or methodology, and the court finds, based
on the record, that Brillhart is qualified as a forensic computer expert. Brillhart is a certfied forensic
computer examiner with substantial experience in the subject, including cell phones specifically, and
he worked in that capacity for the FBI. The physical image extraction technique he employed is
consistent with the techniques this court has seen employed in civil and criminal cases in which
computer and cell phone data evidence is part of the discovery or evidence in the case. Thus,
Billhart’s analysis bears the appropriate indicia of reliability, is consistent with the methodology
accepted in this field, and therefore is scientifically valid. Applying this methodology to the facts
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here, Brillhart’s reasoning and subsequent conclusion — that the text exchanges were falsified by
drafting unsent messages and splicing them with fragments of real text messages — is a logical one
soundly based on the evidence provided. As such, the court accepts Brillhart’s testimony as
admissible under Daubert.
Lee states she did not falsify the text messages. (Deposition of Sarah Lee, Harnden Decl.
Ex. A at 2.) She cites Asia Pac. Agr. & Forestry Co. v. Sester Farms, No. 3:12 CV 00936 PK,
2013 WL 4742934, at *11 (D. Or. Sept. 3, 2013), arguing a disputed allegation of evidentiary
fabrication should be subject to a clear and convincing standard and that “it may be appropriate to
resolve the dispute on the basis of factual findings following an evidentiary hearing.” In Asia Pac.
Agr., a plaintiff company sued a defendant seller for supplying non-conforming goods and supported
its prayer for consequential damages by proffering a purported contract with a third party. Id. at *6.
The defendant seller challenged the contract, however, noting that inconsistencies in the order
timeline and little information about the third party called into question its authenticity. Id. In an
attempt to corroborate the contract, the plaintiff offered into evidence an unsigned, general document
“stating that the purported contract is genuine . . . .” Id.
As discovery in the case progressed, the plaintiff company repeatedly obstructed the process,
including “providing patently inadequate interrogatory responses, repeatedly withholding responsive
documents, refusal to cooperate in discovery disputes, and failing to meet multiple discovery
deadlines, including those imposed by court order. Id. at *6– *7. Defendant, having “obtained [no]
meaningful discovery” in more than a year, moved for terminating sanctions, “premised both on
[plaintiff’]s proffer of (and attempted reliance on) the [third-party] contract and [its] dilatory
performance of its discovery obligations and failure to comply with [the] court’s order . . . .” Id. at
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*11.
The court first addressed the allegedly fabricated contract, agreeing that “the circumstances
attendant” on the contract and the unsigned, general statement of authenticity “strongly suggest the
possibility — but not the certainty — that the document was fabricated for purposes of this
litigation.” Id. at *11. Nevertheless, given the plaintiff’s “emphatic representations of the
document’s authenticity,” the court “declined to find that [plaintiff] fabricated the [] contract in the
absence of an evidentiary hearing on the matter.” Id. “Setting entirely aside the question of the
purported [contract]’s authenticity,” the court then held the plaintiff’s “conduct in litigating th[e]
action [to be] egregious, amounting to failure to participate in any meaningful way in the discovery
process,” which was “willful, in bad faith, and intentionally calculated to interfere with the court’s
ability to weigh the merits of the claims before it . . . .” Id. at *11–*12. The court therefore did “not
order or recommend” and evidentiary hearing on the question of the contract’s authenticity, because
the plaintiff’s “continued dilatoriness” was independently sufficient to warrant dismissing its case
with prejudice. Id. at *12.
Lee’s reliance on Asia Pac. Agr fails for two reasons. First, to the extent she relies on the
case for the mandate that the court must hold an evidentiary hearing before imposing a terminating
sanction, she extends the case’s reasoning too far.

Asia Pac. Agr. did state that “[w]here the

question of fabrication is disputed, it may be appropriate to resolve the dispute on the basis of factual
findings following an evidentiary hearing,” (id. at *11), and the key verb in the court’s statement is
“may,” which suggests a non-mandatory instruction. Furthermore on this point, the Asia Pac. Agr.
court based its terminating sanction primarily, if not solely, on the plaintiff’s discovery obstruction
and not on fabricated evidence, thus making dicta the discussion of sanctions based on that ground.
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Second, Lee has not shown that an evidentiary hearing would serve any purpose, because she
makes no argument and presents no competent evidence to call into question the admissible expert
evidence of fabrication the Defendants have submitted. Lee effectively has conceded Brillhart’s
qualifications as a forensic computer expert and made no specific challenge to his methodology. She
never deposed Brillhart, despite ample opportunity to do so. And she neither offered nor referred
to in her opposition brief any competent evidence of her own that she would introduce at a hearing
to challenge Brillhart’s analysis.
Lee’s only evidence consists of two short answers contained on a single page excerpted from
her deposition, in which she simply denies, when asked, whether she falsified or fabricated text
messages. (ECF No. 101-1, at 2.) Far from the “emphatic” Asia Pac. Agr. plaintiff’s denials that
were supported by at least some corroborating evidence, here Lee’s deposition denials are general,
vague, and conclusory, and not supplemented by affidavit or declaration in which she offers details
or specific assertions to dispute the factual premises and assumptions about the text messages upon
which Brillhart bases his analysis and conclusions. No purpose would be served by conducting an
evidentiary hearing, and the court declines to do so.
Accordingly, absent any competent evidence to the contrary, the court finds the record
overwhelmingly establishes that Lee fabricated the text messages in question.
II.

Five Factors.
Although a district court is not required to make express findings on each of the Ninth

Circuit’s five Anheuser-Busch public-interest factors, the nature of Lee’s conduct and the severity
of the potential consequence of dismissal warrant discussing each factor here. With respect to the
first two, expeditious resolution and managing the docket, Lee’s proffer of the text messages
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required the court to enter, review, and consider false evidence throughout these proceedings,
evidence that should never have been submitted in the first instance. Lee’s deliberately deceptive
conduct wasted the time and resources of the court, of the Defendants, and of her own attorneys.
Added to the falsity of the text messages is that Lee, as did the plaintiff in Asia Pac. Agr., obstructed
discovery in the case by her continued failure to produce the text messages in electronic format, as
Defendants requested, and her failure to preserve and produce her other three or four cell phones,
despite Defendants’ appropriate requests that she provide them.
The third factor turns on whether Lee’s actions impaired the Defendants’ ability to go to trial,
threatened to interfere with the rightful decision of the case, or forced Defendants to rely on
incomplete and spotty evidence. Leon, 464 F.3d at 959 (citing U.S. for Use & Ben. of Wiltec Guam,
Inc. v. Kahaluu Const. Co., 857 F.2d 600, 604 (9th Cir. 1988)). There is no question here that Lee’s
conduct threatened to distort the rightful resolution of the case by forcing Defendants to rebut
manufactured evidence. The false evidence very well may have obscured the truth and affected the
resulting judgment, had it not been for Defendants’ retention of Brillhart, who discovered the
fabricated text messages. Lee’s fabricated evidence forced Defendants, at least initially, to proceed
in the case on the premise the evidence was authentic when it in fact was false, a result even more
egregious than Leon contemplated. Thus, the first, second, and third factors all favor imposition of
a terminating sanction.
The fourth factor, public policy favoring disposition on the merits, generally is not served by
dismissal, but Lee’s conduct in this case undermines the very purpose of this policy: the preservation
of the court’s truth-telling function. Here, the court’s and a jury’s ability to deduce fact from fiction
and to reach an accurate decision on the merits already has been compromised by Lee’s use of the
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fabricated text messages. See e.g., Consumer Fin. Prot. Bureau v. Morgan Drexen, Inc., 101 F.
Supp. 3d 856, 874 (C.D. Cal. 2015) (granting terminating sanctions despite public policy favoring
disposition on the merits because “the ability to reach a merits determination has already been
compromised by the falsification of evidence.”)). Further, this single “factor, standing alone, is
insufficient to outweigh the other four factors if each is otherwise present.” See U.S. ex rel.
Berglund v. Boeing Co., 835 F. Supp. 2d 1020, 1054 (D. Or. 2011) (citing Leon, 464 F.3d at 960–61)
(“[Plaintiff]’s continuing misconduct in this case has made impossible a fair resolution on the merits
and outweighs this important policy.”).
Finally, the fifth factor, evaluating less drastic sanctions, is discussed in Section V, infra.
III.

Willfulness, Fault, or Bad Faith.
A party’s interference with evidence, at least in the context of spoliation, qualifies as willful

if the party “has some notice that the documents were potentially relevant to the litigation before they
were discarded.” Leon, 464 F.3d at 959; see also U.S. ex rel. Berglund, 835 F. Supp. 2d at 1054
(citing In re Napster, Inc., 462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006) (“As soon as a potential
claim is identified, a litigant is under a duty to preserve evidence which it knows or reasonably
should know is relevant to the action.”)). Here, Lee knew the text messages would be relevant
evidence in any lawsuit that arose from her allegations of harassment. The proof of this proposition
is that Lee submitted text messages to her lawyer for use in supporting her BOLI complaint against
Trees and Sims. Subsequently, she used the text messages to support the allegations in this lawsuit.
Lee makes no argument to the contrary.
In addition, the nature of the falsification and the means by which it was executed also
demonstrate the willfulness and bad faith contemplated in Leon. Lee carefully and intentionally
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manipulated and interspersed Sims’s 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, in all likelihood to conceal her wrongdoing. Despite
clear notice that the fabricated text messages in their original electronic format, along with the
additional cellphones, were relevant and in fact central to the litigation Lee herself commenced, Lee
chose to falsify the text messages and withhold both the electronic versions of the real messages and
her other three or four phones. That is willful conduct warranting sanctions.
IV.

Due Process.
Due process protections require that a sanctioned party’s misconduct bear a sufficiently close

nexus to the matters in controversy in the case. Here, Lee’s conduct is directly related to the merits
of the issue her case raises: whether Sims, and through him, Trees subjected her to sexual
harassment and quid pro quo harassment. Lee’s fabricated text messages, which she provided to
BOLI only in printed form, directly led to BOLI’s finding of substantial evidence of discrimination,
a result that bolstered the apparent strength of Lee’s allegations against Trees and Sims. In this
lawsuit, her text messages likewise formed the critical evidence in support of her allegations against
the Defendants. Lee’s fabricated text messages allowed her to sustain her lawsuit against the
Defendants for more than two years, and forced the Defendants to incur significant time and expense
to expose her falsification of evidence. As such, a due process nexus is satisfied here.
Lee’s misconduct is the very form of transgression that threatens to interfere with the rightful
decision of the case, as articulated in Wyle. The withholding of relevant, discoverable evidence and,
even more egregious, the submission of false evidence to the court, undermines both the judicial
process itself and the public’s confidence in that process. Such deception is “utterly inconsistent
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with the orderly administration of justice.” Consumer Fin. Prot. Bureau, 101 F. Supp. 3d at 872
(citing Wyle, 709 F.2d at 589) (entering default judgment against a party that “willfully and in bad
faith engaged in a coordinated and extensive effort to deceive . . . the Court, opposing counsel, and
even their own counsel” by creating and submitting false evidence”).
V.

Remedy.
Lee contends that sanctions less severe than dismissal will suffice as a remedy, but on the

record in this case and in light of the circumstances of Lee’s conduct, they will not. First, Lee has
already made clear she lacks meaningful financial resources; thus, ordering monetary sanctions is
unlikely to adequately address or remedy the wrong here. See Stewart, 2016 WL 3566731, at *3
(ordering termination, noting “[b]ecause of plaintiff’s insolvency, monetary sanctions are not
appropriate to address and remedy the conduct”). Second, limited issue or 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. See Leon, 464 F.3d at 960
(affirming that lesser sanctions, like the exclusion of evidence or a jury instruction creating an
evidentiary presumption, are insufficient if they would be “futile”). Third, Lee’s pattern of deception
casts doubt upon other evidence she has provided and may yet provide. See Anheuser–Busch, Inc.,
69 F.3d at 352 (noting past deception will “likely mean it will be impossible for the court to conduct
another trial with any reasonable assurance that the truth would be available” and rejecting lesser
sanctions “where the court anticipates continued deceptive misconduct”); Consumer Fin. Prot.
Bureau, 101 F. Supp. 3d at 875 (granting terminating sanctions “based on the extent of Defendants’
misrepresentation and falsification of evidence, [since] the Court anticipates that Defendants would
continue to deceive the Court, its own trial counsel, and opposing counsel if . . . allowed to proceed
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to trial”).
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,
because they would still be able to maintain a claim or defense against the opposing party — a
message equivalent to the “no harm, no foul” adage. Such an outcome would do nothing to dissuade
such conduct in the future. See, e.g., Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S.
639, 643 (1976) (per curiam) (affirming terminating sanctions below because dismissal “must be
available to the district court in appropriate cases, not merely to penalize those whose conduct may
be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in
the absence of such a deterrent”).
Finally, dismissal of Lee’s claim is critical to preserving public confidence in the courts. As
this court observed in U.S. ex rel. Berglund,
The rules of civil procedure [] exist to guide parties through the litigation process in
difficult cases and their obligation is to conduct themselves in a manner that protects
the integrity of the process. Berglund intentionally acted to circumvent those rules,
in disregard of the integrity of the judicial process. Such conduct transcends this case
and severely damages the reliability of, and the public’s confidence in, the judicial
system. The penalty thus should hold Berglund accountable. Accordingly,
Berglund’s deliberate and deceptive practices directed at the merits of the controversy
warrants dismissal of his retaliation claim.
835 F. Supp. 2d at 1056. That rationale is equally applicable in this case. Consequently, dismissal
with prejudice is the only appropriate sanction.
/////
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Conclusion
The court therefore GRANTS Defendants’ Motion for Terminating Sanction (ECF No. 93)
and dismisses Lee’s claims with prejudice.
DATED this 6th day of November, 2017.

/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge

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