Ponte v. Sage Bank

Filing 59

MEMORANDUM AND ORDER granting 34 Motion for Sanctions, dismissing Plaintiff's Complaint with prejudice, and further ordering that the Plaintiff is hereby enjoined from using the privileged information for any purpose. So Ordered by Chief Judge William E. Smith on 9/22/2015. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
JOHN C. PONTE,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 14-115 S
)
SAGE BANK, formerly known as
)
Lowell Cooperative Bank,
)
)
Defendant.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Defendant, Sage Bank (“Sage”), has moved for sanctions, up
to

and

including

unauthorized

dismissal

review

of

of

Sage’s

the

action,

confidential

for
and

Plaintiff’s
privileged

information relating to Sage’s litigation strategy in this case
(“the privileged information”). 1

(ECF No. 34.)

C. Ponte, opposes Sage’s motion.

(ECF Nos. 36-37.)

Plaintiff, John
Following a

three-day evidentiary hearing (ECF Nos. 49, 57-58), the parties
filed

post-hearing

memoranda.

(ECF

Nos.

55-56.)

After

considering the evidence adduced at the hearing and the parties’

1

Although Plaintiff challenges Sage’s assertion that the
privileged information is privileged, this Court has conducted
an in camera review of the documents submitted by Sage and
concludes that the vast majority of the emails and several of
the documents are privileged.
Additionally, there is no
persuasive evidence that Sage waived its privilege with respect
to the privileged information.

pre- and post-hearing memoranda, this Court GRANTS Sage’s motion
and DISMISSES Ponte’s complaint WITH PREJUDICE.
I.

Background
Ponte

filed

suit

against

Sage,

his

former

employer,

asserting numerous claims arising from Sage’s alleged breach of
an agreement that governed the employment relationship between
Sage and Ponte.

(ECF No. 1-1.)

Sage removed the case to this

Court (ECF No. 1), and, at first, this case appeared to be on
the ordinary track.

However, the case was soon derailed; on May

30, 2014, Ponte’s counsel, Christopher M. Mulhearn, Esq., sent
counsel for Sage an email in which Mulhearn ominously warned:
“[I]f I were you, I would be very careful what you ask for.
Please

see

attached.”

(Mulhearn

Email,

ECF

No.

18.) 2

The

attached document referenced by Mulhearn was a privileged email
from Sage’s counsel to Sage executives setting forth counsel’s
assessment of assertions previously made by Mulhearn about the
strength of Ponte’s case. 3

(See ECF No. 18.)

2

ECF No. 18 was filed as a sealed document. However, after
reviewing the document, this Court determines that the Mulhearn
email should not be sealed. Accordingly, the Mulhearn email is
no longer sealed, but the remainder of ECF No. 18 will remain
sealed.
3

The three Sage executives to whom this privileged email
was sent all provided declarations in which each stated that he
or she did not share the privileged email (or any of the
information contained therein) with Ponte or anyone else. (See
Decl. of Richard E. Bolton, Jr. ¶¶ 4-5, ECF No. 15-1; Decl. of
2

After

receiving

Mulhearn’s

email,

Sage’s

counsel

pressed

Mulhearn for details on how he came into possession of one of
Sage’s privileged emails.

(See Decl. of Russell Berger (“Berger

Decl.”) ¶¶ 5, 7, ECF No. 15-1; Ex. 2 to Berger Decl., ECF No.
15-1; Ex. 4 to Berger Decl., ECF No. 15-1.)
explanation

insufficient,

Sage

filed

a

Deeming Mulhearn’s

motion

restraining order and preliminary injunction.

for

temporary

(ECF No. 15.)

After an in-chambers conference (ECF No. 33), this Court granted
Sage’s motion and enjoined Ponte and his agents from reviewing,
using, or disclosing any communications between Sage and its
counsel;

the

Court

also

ordered

that

Ponte

return

the

information to Sage and destroy all electronic and hard copies
of the information in his possession.
period

of

limited

discovery

relating

(ECF No. 25.)
to

how

Ponte

After a
came

into

possession of the privileged information, Sage filed the instant
motion for sanctions.
Although

not

(ECF No. 34.)

much

clarity

emerged

from

the

three-day

evidentiary hearing, the following facts are clear to the Court.
The privileged information, along with other Sage information,
was placed on ShareFile, “a secure off-site repository for the
retention or exchange of files,” by James E. Barry, Jr., Sage’s

Denise Bey ¶¶ 4-5, ECF No. 15-1; Decl. of J. Mark Olsen ¶¶ 4-5,
ECF NO. 15-1.)
3

then-Vice

President

of

Information

Technology

and

Security. 4

(April 1, 2015 Evidentiary Hr’g Tr. (“Day 2 Hr’g Tr.”) 31:19-23,
ECF No. 57; see id. at 30:9-10, 30:16-18, 55:19-56:7, 57:12-14;
April 7, 2015 Evidentiary Hr’g Tr. (“Day 3 Hr’g Tr.”) 7:17-8:8,
26:24-27:5,

ECF

No.

58.)

Barry

uploaded

the

privileged

information, which consisted of Sage emails that he had obtained
from

Sage’s

email

archive,

in

electronic

format,

either

as

personal storage (“PST”) files or offline storage (“OST”) files.
(See Day 2 Hr’g Tr. 55:19-56:7, ECF No. 57; Day 3 Hr’g Tr.
28:22-29:14, ECF No. 58.)

Without any request from Ponte, Barry

granted Ponte or Richard R. Ponte – who is Ponte’s cousin and
Barry’s

friend

–

access

to

the

folder(s)

in

which

Sage

information, including the privileged information, was stored. 5
(See Day 2 Hr’g Tr. 34:5-35:1, ECF No. 57; Day 3 Hr’g Tr. 33:1618, ECF No. 58; see also March 17, 2015 Evidentiary Hr’g Tr.
4

Around the time that Sage discovered that Ponte possessed
the privileged information, Barry left Sage’s employ for reasons
unrelated to the privileged information.
(See March 17, 2015
Evidentiary Hr’g Tr. (“Day 1 Hr’g Tr.”) 15:18-16:7, 17:13-18:5,
ECF No. 49; April 7, 2015 Evidentiary Hr’g Tr. (“Day 3 Hr’g
Tr.”) 60:13-61:4, ECF No. 58.)
5

Barry testified that he intended to allow the Pontes to
access
only
certain
information
and
not
the
privileged
information but that, through a mistake on his part, the Pontes
were permitted to access the privileged information. (See Day 2
Hr’g Tr. 36:14-16, 44:2-22, 45:5-13, 54:18-23, ECF No. 57; Day 3
Hr’g
Tr.
33:24-34:15,
89:1-8,
89:15-17,
ECF
No.
58.)
Compounding this access error, Barry believes that he was not
sufficiently clear when directing Richard to the correct Sage
information on ShareFile.
(See Day 3 Hr’g Tr. 34:16-23, 89:810, ECF No. 58.)
4

(“Day 1 Hr’g Tr.”) 106:17, 108:5-6.)

Richard 6 accessed ShareFile

from his desktop, opened the files containing the privileged
information, printed them, and gave the hard copies to Ponte.
(See Day 1 Hr’g Tr. 113:1-6, 117:20-118:10, 119:5-7, 119:24120:22, 127:16-128:4, 131:23-24, 132:12-13, ECF No. 49.)
A few days after Ponte received the privileged information
from

Richard,

he

informed

151:17-24, 152:22-25.)

Mulhearn

about

it.

(See

id.

at

Ponte testified that, up to this point,

he had not reviewed the privileged information, apart from a
quick glance to ascertain what Richard had provided him.
id. at 152:25-153:1, 153:5-11, 163:9-17.)

(See

Ponte testified that,

although Mulhearn advised him not to do anything with respect to
the privileged information, he disregarded this advice and read
the privileged information. 7

(See id. at 165:5-22, 170:2-6; see

also Day 2 Hr’g Tr. 17:22-25, ECF No. 57.)

Additionally, soon

after Ponte informed Mulhearn about the privileged information,
Mulhearn

sent

the

email

to

Sage’s

counsel

that

attached

a

6

To distinguish between Plaintiff and his cousin, the Court
refers to Plaintiff as “Ponte,” his cousin as “Richard,” and
both Plaintiff and his cousin as “the Pontes.”
7

During follow-up questioning from the Court, Ponte
attempted to distance himself from his prior testimony; his
later testimony is that he read the privileged information
before speaking with Mulhearn about it.
(See Day 2 Hr’g Tr.
22:10-16, 22:25-23:5, 25:13-21, 26:1-27:4, ECF No. 57.)
The
Court finds that Ponte’s later testimony in this regard is not
credible; his earlier testimony makes clear that he deliberately
reviewed the privileged information after Mulhearn told him not
to do so.
5

privileged email from Sage’s counsel to Sage executives.

(See

Day 1 Hr’g Tr. 163:3-8, ECF No. 49; Mulhearn Email, ECF No. 18.)
A

focal

point

of

the

evidentiary

hearing

was

the

uncertainty surrounding the circumstances of, and the motivation
behind, Barry’s actions. 8

Barry testified that an internal power

struggle was afoot at Sage during the time when he uploaded the
privileged information to ShareFile.

(See Day 3 Hr’g Tr. 73:21-

74:10,

to

ECF

supervisor

No.
at

58.)

Sage

–

According
Jeffrey

Barry,

Guimond,

his

Sage’s

immediate

Senior

Vice

President of Bank Operations (see Day 1 Hr’g Tr. 67:9, 67:20-21,
68:12-13, ECF No. 49) – was involved in that power struggle.
(See Day 3 Hr’g Tr. 5:24-6:1, 73:21-74:10, ECF No. 58.)
testified

that

Guimond,

in

an

effort

to

discredit

Barry
a

Sage

executive on the opposite side of the struggle, directed Barry
to

“fact-check”

Ponte.

certain

information

or

“compare

notes”

with

(See Day 2 Hr’g Tr. 42:8-25, ECF No. 57; Day 3 Hr’g Tr.

18:5-19:1, 55:19-25, 58:11-59:9, ECF No. 58.)

Barry further

testified that Guimond directed Barry to search Sage’s email
archive system for emails relating to Ponte and his litigation
against Sage Bank as part of this “fact-checking” effort.
Day 3 Hr’g Tr. 12:23-13:6, ECF No. 58.)

(See

Barry downloaded the

emails relating to “fact-checking” purposes to his desktop and
8

There is no persuasive evidence that either of the Pontes
sought out the privileged information from Barry.
(See Day 3
Hr’g Tr. 31:18-21, 39:8-12, 46:14-25, ECF No. 58.)
6

uploaded them to ShareFile.
part,

Guimond

emphatically

(See id. at 80:11-81:1.)
denied

ever

instructing

For his
Barry

to

provide Sage information, including the privileged information,
to the Pontes.

(See Day 1 Hr’g Tr. 75:2-6, 80:7-12, 99:10-12,

ECF No. 49.)
Ultimately, the question of whether Barry was instructed by
Guimond

to

provide

the

Pontes

with

certain

information

for

“fact-checking” purposes or did so of his own volition need not
be

resolved

Barry

in

order

testified

obtained

by

to

that

the

searching

decide

Sage’s

privileged
Sage’s

motion

for

information,

email

sanctions.

which

archive

Barry

system

for

permutations of the name of Sage’s lead counsel, had nothing to
do with the information that Barry uploaded to ShareFile for
purposes of the “fact-checking” endeavor; Barry testified that
the “fact-checking” information should not have contained any
privileged

emails

because

of

the

different

that Barry used to obtain that information.
81:2-16,
58.)

82:17-83:23,

84:7-18,

85:9-23,

search

parameters

(See Day 3 Hr’g Tr.

87:17-88:25,

ECF

No.

Additionally, it was solely Barry’s decision to upload the

privileged information to ShareFile because it may have related
to a potential whistleblower claim that Barry was contemplating.
(See id. at 92:24-93:14.)

And, as explained above, see supra

note 5, Barry intended for the Pontes to be able to access only
the

information

that

he

uploaded
7

to

ShareFile

for

“fact-

checking” purposes, and not the privileged information; but an
error on Barry’s part allowed for Richard to access both the
“fact-checking”

information

and

the

privileged

information.

(See Day 2 Hr’g Tr. 36:14-16, 44:2-22, 45:5-13, 54:18-23, ECF
No. 57; Day 3 Hr’g Tr. 33:24-34:23, 85:4-8, 89:1-10, 89:15-17,
ECF No. 58.)

Indeed, even if Barry is correct that Guimond

directed him to share certain information with the Pontes for
“fact-checking” purposes, he acknowledged that no one from Sage
told him to disclose the privileged information to Ponte, and,
to the extent that occurred, it was an accident.

(See Day 3

Hr’g Tr. 50:17-23, ECF No. 58.)
In any event, regardless of the uncertainty surrounding the
circumstances
Ponte’s
Ponte

of,

and

conduct

after

testified

that

attorneys.

(See

motivations
receiving
he

Day

1

has
Hr’g

behind,

the
vast

Tr.

emails

Barry’s
is

actions,

determinative.

experience

dealing
ECF

138:22-139:3,

with
49.)

No.

Ponte understood the attorney-client privilege, and appreciated
the

advantages

possession

of

that
an

can

opponent’s

(See id. at 139:4-10.)
understood

the

flow

a

litigant

attorney-client

who

comes

into

communications.

Moreover, Ponte acknowledged that he

privileged

information in this case.

to

character

of

the

privileged

(See id. at 139:11-15, 141:5-18.)

Ponte also knew that privileged documents generally cannot be
obtained by the adverse party through discovery.
8

(See id. at

150:1-6.)

And yet, notwithstanding this extensive knowledge,

Ponte decided to read and use the privileged information.
id. at 141:20-21, 168:8-169:11.)

(See

Even more problematic, Ponte

read the privileged emails in defiance of the advice of his
counsel.

(See id. at 165:5-22, 170:2-6; see also Day 2 Hr’g Tr.

17:22-25, ECF No. 57.)
informed

of

the

Mulhearn’s initial conduct after being

privileged

information

was

equally

brazen.

Rather than informing opposing counsel that his client had found
himself in possession of Sage’s attorney-client communications,
Mulhearn sent an email to Sage’s counsel attaching one of the
privileged emails and threatening, “[I]f I were you, I would be
very careful what you ask for.” 9

(Mulhearn Email, ECF No. 18.)

Moreover, to make matters worse for Ponte, he subsequently
engaged in efforts to cover his tracks.

It appears as though

some crude effort was made to redact the top of the headings of
9

Additionally, someone in Ponte’s camp – Ponte, Richard, or
Mulhearn – made handwritten notations on hard copies of the
privileged information, some of which comment on strategies
discussed in the emails pertaining to Sage’s litigation with
Ponte.
(See PRIV 000010, 12, 20, 364, 369, 371, 375, 377-78,
Def.’s Ex. G.) Although both Ponte and Mulhearn denied writing
on the privileged information (see Day 1 Hr’g Tr. 168:1-6,
171:6-8, 172:2-7, ECF No. 49; Pl.’s Opp’n to Mot. for Sanctions
(“Pl.’s Opp’n”) 18, ECF No. 37), Barry explained that the
privileged emails, which were uploaded to ShareFile as PST or
OST electronic files, could not have contained handwriting on
them at the time they were uploaded and that the handwriting
must
have
occurred
at
some
point
after
the
privileged
information was printed. (See Day 2 Hr’g Tr. 56:8-57:8, ECF No.
57.)
Thus, although no one admitted to writing on the
privileged information, either Ponte or one of his agents
clearly did so.
9

the privileged emails.

On the top of the heading of one of the

emails, the name of Richard’s company, LendTech, appears.

(See

PRIV 000347, Def.’s Ex. G; see also Day 1 Hr’g Tr. 106:24107:10, ECF No. 49; Day 2 Hr’g Tr. 12:15-20, ECF No. 57.)

On

several other emails, the portion of the heading that contained
LendTech appears to have been redacted, perhaps by whiteout or
some other method (see PRIV 000002, 7, 14, 16, 22, 28, 35, 38,
40, 44, 68, 94, 137, 139, 283, 306, 314, 322, 330, 357, 361,
373, 379, Def.’s Ex. G; see also Day 2 Hr’g Tr. 13:3-12, 13:2214:1, ECF No. 57); indeed, in two of these emails, portions of
the “L” in LendTech appear to be visible (see PRIV 000361, 379,
Def.’s Ex. G).
emails

Additionally, although Ponte and Barry exchanged

discussing

Sage

after

Ponte

received

the

privileged

information and although Sage sought those emails in advance of
Ponte’s deposition (see Day 1 Hr’g Tr. 177:21-178:8, 180:25181:3, 183:11-13, ECF No. 49; Day 2 Hr’g Tr. 71:23-72:8, 73:2474:3, ECF No. 57; Def.’s Ex. D), the emails were never produced
because Ponte deleted them.

(See Day 1 Hr’g Tr. 181:4-182:4,

183:14-24, 184:20-23, ECF No. 49.)
Further, Ponte has not fully complied with this Court’s
order for the return of the privileged information.

This Court

ordered Ponte, “and any and all agents of Ponte,” to return all
of the information that Ponte received from Barry after Ponte
left Sage.

(Order 1, ECF No. 25.)
10

However, Ponte admitted that

he did not return all of the information to Sage, and that some
of it remained in Richard’s possession. 10

(See Day 1 Hr’g Tr.

185:3-21, 190:2-6, ECF No. 49.)
Ponte’s review of the privileged information has prejudiced
Sage.

Ponte testified that he learned new information through

his review

of

the

privileged

information,

and

he

planned

amending his complaint to make use of this information.

on

(See

Day 1 Hr’g Tr. 145:25-146:10, 147:3-9, 150:7-10, ECF No. 49.)
Additionally,

emboldened

by

this

newfound

dramatically increased his settlement demand.

intel,

Ponte

(See Berger Decl.

¶ 11, ECF No. 15-1; Ex. 4 to Berger Decl., ECF No. 15-1.)

In an

email Ponte sent to two Sage executives after Sage learned of
his possession of the privileged information, he attempted to
leverage his knowledge of the privileged information in order to
obtain a settlement with Sage.

He referred to the privileged

information as “terribly damaging documentation that provides me
additional

proof

that

not

only

shore

up

and

substantiate

my

claims against you, but offer additional insight into what can
only be described as nefarious activity and may very well create
potentially damaging issues with your regulators, as well as
10

Similarly, because the privileged information that Ponte
returned to Sage was clearly a photocopy of the original
documents to which the handwritten notations were made and the
whiteout applied, it is not clear whether Ponte is still in
possession of the privileged information. He was instructed by
this Court to destroy all copies in his possession after
returning the information to Sage. (See Order 2, ECF No. 25.)
11

opening you to potentially devastating civil actions.”
June 16, 2014 Email, ECF No. 19-1.)
proposal,

Ponte

information
(Id.)
as

in

“agree[d]

my

to

possession

As part of his settlement

not

that

(Ponte’s

divulge

I

to

anyone

believe

will

harm

the
you.”

He closed his email by warning Sage, “You do not want me

an

enemy.

[I]

have

correspondence between you.”

read

that

in

countless

email

(Id.)

Finally, the Court finds that Ponte testified untruthfully
at the evidentiary hearing.
to

questions

from

both

He routinely gave evasive answers

Sage’s

counsel

and

this

testified that the truth can change over time.
Tr. 143:20-24, ECF No. 49.)

Tr.

141:24-142:1,

He

(See Day 1 Hr’g

His testimony was riddled with

inconsistencies concerning a host of subjects.
Hr’g

Court.

142:5-142:9,

ECF

No.

(Compare Day 1
49,

with

id. at

168:22; compare id. at 145:25-146:10, 147:3-9, 150:7-10, with
id. at 160:6-12; compare id. at 139:7-10, with id. at 155:12-15;
compare id. at 153:2-4, with id. at 160:18-22; compare Day 2
Hr’g Tr. 6:10-12, ECF No. 57, with id. at 6:13-21; compare id.
at 17:22-25, with id. at 22:10-16, 22:25-23:5, 25:13-21, 26:127:4.)

During the short time that Ponte was on the stand, he

changed his tune on such important questions as how much and
what types of the privileged information he reviewed (compare
Day

1

Hr’g

Tr.

141:24-142:1,

142:5-9,

ECF

No.

49

(Ponte’s

testimony that he only read the information that did not pertain
12

to his case against Sage), with id. at 168:22 (“I only read what
I thought was pertaining to me”), and Day 2 Hr’g Tr. 21:9-22:5,
ECF No. 57; cf. Decl. of John C. Ponte ¶ 37, ECF No. 20-2
(stating
having

that

Barry

nothing

to

did

do

not

with

provide

Ponte’s

Ponte

case

with

against

information
Sage)),

and

whether he reviewed the privileged information before or after
he spoke with Mulhearn about receiving it (compare Day 1 Hr’g
Tr. 152:25-153:1, 153:5-11, 163:9-17, ECF No. 49, and Day 2 Hr’g
Tr.

17:22-25,

ECF

No.

57,

with

id.

at

22:10-16,

22:25-23:5,

25:13-21, 26:1-27:4). 11
Ponte’s refusal to truthfully answer the questions he was
asked has made it impossible for this Court to determine with
any confidence the actual extent to which Ponte reviewed the
privileged information and has complied with this Court’s order
regarding

return

Moreover,

having

heard

confidence

that,

moving

discovery

rules

of

and

the

this

privilege

Ponte

information

testify,

forward,
Court’s

Ponte
future

to

Sage.

this

Court

has

will

abide

by

orders.

The

no
the
only

convincing aspect of Ponte’s testimony was the message, whether
conveyed intentionally or not, that Ponte does not regard his

11

Interestingly, when pressed during questioning, Ponte,
Richard, and Barry each claimed that a recent medical condition
affected his ability to recall pertinent events, and each seemed
very eager to have the record reflect that circumstance.
(See
Day 1 Hr’g Tr. 109:16-21, 133:4-7, ECF No. 49; Day 2 Hr’g Tr.
8:2-7, 37:1-3, 37:10-14, 72:11-20, ECF No. 57.)
13

review of Sage’s privileged information as important enough to
warrant the inquiry that Sage has undertaken.
II.

Discussion
Sage seeks sanctions under this Court’s inherent powers.

It

is

power

well
“to

settled
fashion

that
an

federal

appropriate

abuses the judicial process.”
32,

44-45

lawsuit

(1991).

is

within

sanctions.
F.2d

11,

The
the

courts

possess

sanction

for

the

inherent

conduct

which

Chambers v. NASCO, Inc., 501 U.S.

sanction
arsenal

of

of

outright

the

dismissal

Court’s

of

a

inherent-power

See id.; R.W. Int’l Corp. v. Welch Foods, Inc., 937
20

(1st

Cir.

1991).

To

be

sure,

the

sanction

of

dismissal is strong medicine that should not be administered too
liberally.

See Young v. Gordon, 330 F.3d 76, 81 (1st Cir.

2003); Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 28
(1st Cir. 1998).

However, in cases of extreme misconduct, it

remains an appropriate sanction.

See Young, 330 F.3d at 81.

After full consideration of the evidence presented, this
Court deems this case to be the rare one involving the requisite
level

of

misconduct

to

warrant

dismissal

as

a

sanction.

Although the circumstances surrounding Richard’s access of the
privileged

information

are

murky,

receiving

the

information

is

understood

the

attorney-client

Ponte’s

clear

and

privilege,

misconduct
damning.

its

Ponte

importance,

the privileged nature of the emails he received.
14

after

and

He was also

instructed by Mulhearn not to read the emails.
all

of

these

caution

flags,

Ponte

went

Notwithstanding

ahead

privileged information to procure an advantage.

and

read

the

His conduct was

in deliberate disregard of his attorney’s admonition, and his
willful invasion of Sage’s privileged information was flagrantly
improper and constitutes extreme misconduct.
Moreover,

Ponte’s

transgressions

did

not

end

unjustified review of Sage’s privileged information.

with

his

Instead,

Mulhearn sent an email to Sage’s counsel containing a thinly
veiled threat and attaching a privileged email.
Email, ECF No. 18.)

Following the example set by his attorney,

Ponte pushed the envelope a bit further.
favorable

information

bookmarking
sent

his

certain

own

email

(See Mulhearn

from

emails
to

the
with

Sage

After gleaning all

privileged

information

handwritten

that

notations),

expressly

Ponte

the

newly

acquired information to leverage a settlement with Sage.

(See

Ponte’s June 16, 2014 Email, ECF No. 19-1.)

used

(and

This Court will not

countenance such strong-arm tactics, especially where, as here,
the bargaining strength stems from an unauthorized and plainly
improper review of an adversary’s privileged communications.
Additionally, Ponte’s conduct, both before and during the
evidentiary hearing, has frustrated the Court’s search for truth
and undermined its ability to effectively police the conduct of
those that come before it.

Even after Sage learned of Ponte’s
15

possession of the privileged information, Ponte deleted emails
between him and Barry that discussed Sage.

Before returning the

privileged information to Sage, someone in Ponte’s camp crudely
redacted “LendTech” from the headings of all but one of the
emails – no doubt in an effort to conceal Richard’s involvement
in

this

bizarre

untruthful

saga.

testimony,

Worse
which

still,

alone

Ponte’s

warrants

evasive

and

sanctions,

has

prevented the Court from ascertaining precisely what happened
once Ponte received the privileged information.
Microsoft

Corp.,

211

F.R.D.

423,

431-33

See Jackson v.

(W.D.

Wash.

2002)

(dismissing plaintiff’s action where plaintiff claimed not to
have

known

from

communications
“elaborate

whom

and

series

of

he

obtained

confidential
lies

about

CDs

containing

information
his

privileged

and

misconduct”).

told

an

Finally,

Ponte’s admission that, in violation of this Court’s order, he
did not return all of the information to Sage and that some of
it

remains

in

Richard’s

possession

is

further

proof

that

an

order of the Court cannot ensure that Ponte will litigate his
case against Sage honestly and within the rules.

Cf. Young, 330

F.3d at 81 (“[D]isobedience of court orders is inimical to the
orderly administration of justice and, in and of itself, can
constitute extreme misconduct.”).

16

III. Conclusion
For these reasons, this Court finds that the undeniably
severe

sanction

appropriate
Accordingly,
DISMISSED

of

dismissal

sanction
it

WITH

is

for

hereby

PREJUDICE

of

Ponte’s

Ponte’s
ordered

and

Ponte’s

ordered

is

the

only

misconduct. 12

extreme

that

further

action

complaint

that

Ponte

be
is

hereby ENJOINED from using the privileged information for any
purpose.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: September 22, 2015

12

In addition to dismissal, Sage also seeks an award of
attorneys’ fees.
(See Sage’s Post-hearing Br. 18-19, ECF No.
55.)
The Court declines to tack on attorneys’ fees to its
sanction of dismissal. The sanction imposed will preclude Ponte
from obtaining his day in court on the claims asserted in his
complaint. Although the Court deems this action appropriate in
this case, the severity of this sanction cannot be gainsaid.
Imposing an award of attorneys’ fees on top of the severe
sanction of dismissal strikes this Court as too draconian for
the facts of this case.
17