Davis v. Crescent Electric Supply Company et al
Filing
121
MEMORANDUM OPINION AND ORDER denying 89 Motion for Sanctions. Signed by U.S. District Judge Lawrence L. Piersol on 4/21/16. (Attachments: # 1 Exhibit 1A- 8/1/11 EEOC response letter and email, # 2 Exhibit 1B- copy disclosed by Davisto Defendants during discovery, # 3 Exhibit 2- archive-retrieved email chain) (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
PILED
APR 2 1 2016
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LISA A. DAVIS,
Plaintiff,
vs.
CRESCENT ELECTRIC COMPANY,
("CESCO") a Delaware Corporation;
JAMES M. SULLIVAN, CESCO 015
Branch Manager; MARTINS.
BURBRIDGE, President/CEO; JAMES R.
ETHEREDGE, Sr. Vice Pres./CFO;
CHRISTOPHER P. BRESLIN,
Sr. Vice Pres./COO; DANIEL E.
PHILIPPI, Vice Pres.-Human Resources;
JAMES M. SWEENEY AND
ASSOCIATES, INC., an Iowa Corporation;
LIBERTY MOTORS, INC. ("LIBERTY"),
a South Dakota Domestic Business;
LARRY L. PATNOE, Liberty President;
and DONALD E. PATNOE, Liberty
President/Treasurer,
Defendants.
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CLERK
CIV 12-5008
MEMORANDUM OPINION AND
ORDER DENYING PLAINTIFF'S MOTION
FOR SANCTIONS
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Before the Court is Plaintiff Lisa Davis's (Davis) motion for sanctions against
Defendants pursuant to Federal Rules of Civil Procedure 37, 26, and 11. For the following
reasons, the motion is denied.
BACKGROUND
This case involves alleged wage discrimination and retaliation against an employee,
Davis. Davis formerly worked for Defendant Crescent Electric Supply Company ("CESCO").
CESCO "is an electrical distributor with 120+ locations and about 1550 employees throughout
the United States." Second Supplemental Affidavit of Lisa A. Davis, Doc. 97-2 at 1. She began
work at CESCO on August 31, 2005 as a desk clerk. During Davis's time at CESCO, Defendant
James M. Sullivan ("Sullivan") was her direct supervisor. For her position as a desk clerk, Davis
received an hourly wage. In June 2010, Davis was promoted to a sales position-Quotation
Specialist-as a replacement to Ken Herman ("Herman"). Prior to Davis accepting the position,
Herman implied to Davis that she would receive commissions as part of being a Quotation
Specialist. Sullivan, however, indicated only that Davis would receive a raise, but did not state
that that raise would be in the form of commissions. Davis did receive a pay increase of $2.10,
raising her pay rate of $12.40 per hour to $14.50 per hour.
As a Quotation Specialist, Davis received a list of jobs to bid on. She then had to request
plans and produce counts of light fixtures to the customer. Prior to accepting the Quotation
Specialist position, Davis had no experience in quotations. She was told, however, that she
would not need product training. Training for the position itself was conducted between the
incoming and outgoing Quotation Specialists.
On November 29, 2010, via email, Davis told Sullivan that she was informed by Herman
that she would receive commissions as a part of the promotion. Davis wanted to know when she
would receive the same. In a response email, Sullivan informed Davis that Herman did not have
the authority to tell her that she would receive commissions, that commission pay for her
position was not budgeted for the year, and that she received an hourly pay rate increase instead.
Davis forwarded this two-email chain between her and Sullivan to a personal Yahoo email
account. Davis claims she never sent a reply email to Sullivan. 1
1
The crux of Davis's pending motion for sanctions hinges on whether Davis sent a reply email to Sullivan. See,
infra. The email exchange between Davis and Sullivan that Davis forwarded to her Yahoo email account began with
Davis writing,
Hello Jim [Sullivan],
I was just curious. Kenny [Herman] told me that eventually I would be making commission when
I moved to quotations. Can you tell me when that will start?
Thank you,
Lisa
Plaintiffs Brief in Support of Amended Motion for Sanctions, Doc. 93-3, at 1. Sullivan replied,
Unfortunately Kenny shouldn't have told you that as he has nothing to do with employees wages
(sic).
You were given a substantial increase when moved into that position and I have no commission
budgeted for 2011.
We will have to discuss this at employee appraisals in February.
2
On January 1, 2011, Davis was moved to CESCO's warehouse in an effort to familiarize
Davis with CESCO's products and help her successfully return to the Quotation Specialist
position. Her pay rate was unaffected. On February 16, 2011, Davis was again reassigned, this
time to Project Specialist. Her pay rate was again unaffected and her duties as Project Specialist
were similar to the Quotation Specialist position, except that, as Project Specialist, Davis no
longer bid on jobs.
In April 2011, Davis complained to CESCO of wage discrimination. Julie Skinner
("Skinner" or "Steinstra"), CESCO's HR Generalist, investigated Davis's complaint. As a result
of the investigation, Skinner concluded that Davis's Quotation Specialist successor, Kody
Mendel ("Mendel"), while receiving commissions, was making approximately $2,000 less than
Davis. The investigation further concluded that Davis was moved out of the Quotation Specialist
position as a result of her performance. Skinner informed Davis of her conclusions in a letter
dated April 27, 2011, Doc. 69-10.
Between March and May 2011, Davis encountered behaviors of Mendel that she
considered to be sexual harassment directed toward her. Interpreting these behaviors as
retaliation for her discrimination complaint, Davis filed a complaint with CESCO HR again.
Similar to the April 27 letter from Skinner related to the discrimination claim, Skinner sent Davis
a letter on May 26, 2011 informing Davis of Skinner's conclusions related to the sexual
harassment/retaliation claim. In the letter, Skinner stated that she believed Mendel should receive
disciplinary action for the behavior detailed by Davis. What action was taken by CESCO is
unclear from the current record.
On June 16, 2011, Davis resigned from CESCO. Shortly thereafter, she filed a claim of
discrimination against CESCO with the Equal Employment Opportunity Commission (EEOC).
On August 1, 2011, Skinner sent a response letter to the EEOC. Second Supplemental Affidavit
of Lisa A. Davis, Doc. 97-2. To this letter was attached the two-email chain ("Exhibit 1A")2
between Davis and Skinner from November 29, 2010 related to commissions. Doc. 97-2 at 3.
See, supra, note 1 and accompanying text. Shortly thereafter, on August 23, 2011, Skinner
accessed CESCO's email archives. Affidavit of Julie Skinner, Doc. 94, at 1. From the archives,
Jim
Id.
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The August 1, 2011 EEOC response letter and email are attached to this Memorandum Opinion and Order as
Exhibit IA.
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Skinner retrieved the email exchange from Davis to Sullivan dated November 29, 2010, Id., a
version of which was attached to the August 1, 2011 response to the EEOC. This archiveretrieved email chain ("Exhibit 2") 3, Doc. 90-5, however, contained a third email, a reply email
from Davis to Sullivan. Responding to Sullivan's explanation to Davis that she received an
hourly pay rate increase instead of commissions, the third email read, "Ok. I was just wondering.
I can live with that. Thank you." Doc. 90-5. This three-email chain was sent to the EEOC on
August 29, 2011 by Skinner. Second Supplemental Affidavit of Lisa A. Davis, Doc. 97-3, at 3. 4
Davis filed her complaint in federal court on February 8, 2012. On June 8, 2015, Davis's
original attorney-of-record withdrew from the case and Davis's current attorney-of-record, Mario
Gonzalez, began handling Davis's case. On June 29, 2015, Davis filed the instant motion for
sanctions against Defendants. In the motion, Davis claims that Exhibit 2, namely the third email
in the chain, was fabricated by Defendants. Accordingly, Davis asks the Court to sanction
Defendants by (1) striking Defendants' responsive pleadings and entering default judgment in
favor of Davis, (2) holding Defendants in contempt of court, (3) striking Defendants' motion for
summary judgment, and (4) awarding Davis costs and attorney's fees.
STANDARD OF REVIEW
In the Eighth Circuit, district court impositions of sanctions are governed by the abuse of
discretion standard. Perkins v. General Motors Corp., 965 F.2d 597, 602 (8th Cir. 1992)
(upholding district court's imposition of sanctions under Federal Rules of Civil Procedure 11 and
26); Gallagher v. Magner, 619 F.3d 823, 844 (8th Cir. 2010) ("We review an order denying
discovery sanctions for an abuse of discretion.") (citation omitted). "[T]he district courts [are
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The email has been attached to this Memorandum Opinion and Order as Exhibit 2.
The email attached to Skinner's August 1, 2011 response letter appears to be the two-email chain between Davis
and Sullivan on November 29, 2010 that Davis forwarded to a personal Yahoo email account. The second heading
in the chain indicates that it was sent from the email address "Lisa.Davis@cesco.com" to "laspeedyg@yahoo.com."
Plaintiff's Brief in Support, Doc. 90-3, at 1 and Second Supplemental Affidavit of Lisa A. Davis, Doc. 97-2, at 3.
The record is unclear how Skinner came into possession of the two-email chain that was sent to the EEOC on
August 1, 2011. Davis filed her complaint in federal court on February 8, 2012 and discovery closed on March 19,
2015. According to Defendants, the two-email chain was "produced by Davis and bates stamped as DAVIS 648 and
is a printout of the chain as forwarded to Davis's Yahoo email account." Defendant's Briefin Opposition, Doc. 93,
at 4. Davis asserts that Skinner must have accessed Davis's CESCO email account directly sometime before the
August 1, 2011 EEOC response letter was sent and, thus, prior to Davis's discovery disclosures. See Plaintiffs
Reply Brief, Doc. 96, at 7 ("Given the fact Skinner accessed Plaintiff's CESCO email account to obtain the
November 29, 2010 email that she provided to the EEOC on August 1, 2011, there was no reason for her to access
the CESCO archives to retrieve the email a second time on August 23, 2011."). Thus, there are two versions of the
two-email chain: the copy provided to the EEOC on August 1, 2011, Exhibit IA, and the copy disclosed by Davis to
Defendants during discovery ("Exhibit lB"). Exhibit 1B has also been attached to this Memorandum Opinion and
Order.
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given] a large amount of discretion in regulating and sanctioning misconduct which occurs in
proceedings before it." Good Stewardship of Christian Center v. Empire Bank, 341 F.3d 794,
797 (8th Cir. 2003) (citing Hunt v. City of Minneapolis, Minn., 203 F.3d 524, 527 (8th Cir.
2000)). See Bunting v. Sea Ray, Inc., 99 F.3d 887, 890 (8th Cir. 1996) (holding that "[t]he
conduct of discovery is committed to the trial court's sound discretion." The trial court did not
"condone" obstructionist tactics in refusing to grant sanctions). Specific to when deciding
whether to dismiss a case as a sanction for discovery abuses, "the district court must balance its
'need to advance its burdened docket against the consequence of irrevocably extinguishing [a]
litigant's claim."' Empire Bank, 341 F.3d at 797 (citation omitted). While a district court is
advised to first consider lesser sanctions, Keefer v. Provident Life and Acc. Ins. Co., 238 F.3d
937, 941 (8th Cir. 2000), "[t]he futility oflesser sanctions is a further consideration in the district
court's balancing calculation." Empire Bank, 341 F.3d at 797 (citing First Gen. Res. Co. v. Elton
Leather Corp., 958 F.2d 204, 206 (8th Cir. 1992)). Moreover, imposing a sanction on a litigant
"is proper only if just and expressly related to the particular claim." MacGregor v. Mallinckrodt,
Inc., 373 F.3d 923, 935 (8th Cir. 2004) (citing Keefer, 238 F.3d at 941).
DISCUSSION
Federal Rule of Civil Procedure 37 "'provides generally for sanctions against parties or
persons unjustifiably resisting discovery."' § 2281 History and Purpose of Rule, 8B Fed. Prac. &
Proc. Civ. § 2281 (3d ed.) (quoting Advisory Committee Note to 1970 amendments of Rule 37,
78 F.R.D. at 538). In the Eighth Circuit, "[i]mposition of discovery sanctions requires 'an order
compelling discovery, a willful violation of that order, and prejudice to the other party."'
Mallinckrodt, 373 F.3d at 934 (quoting Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir.
1999)). See Guifu Liv. A Perfect Day Franchise, Inc., 281 F.R.D. 373, 390 (N.D. Cal. 2012)
("As a condition precedent to imposing sanctions pursuant to Federal Rule of Civil Procedure 37
the Defendants must have violated a Court Order."); Fed. Prac. & Proc., supra, at§ 2282 ("The
general scheme of[] [R]ule [37] is that ordinarily sanctions can be applied only for a failure to
comply with an order of the court."). The Court is unaware of any order that Defendants violated
during discovery. In fact, Davis has not argued that Defendants have failed to disclose certain
information during discovery in violation of a court order. As such, Davis has failed the first
prong of the Eighth Circuit's three-part test for Rule 37 sanctions-an order compelling
discovery. See Countryside Cas. Co. v. Orr, 523 F.2d 870, 872 n. 3 (8th Cir. 1975) ("The
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sanctions found in Fed.R.Civ.P. 37 are the only relief available for failure to make discovery.")
(citations omitted). Thus, Rule 37 has no application here.
'
Under Federal Rule of Civil Procedure 11, district court impositions of sanctions are
reviewed under the deferential "abuse of discretion" standard. Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). "A district court would necessarily
abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence." Id. A Rule 11 sanction might
be warranted when a pleading is "presented for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation,"
Fed.R.Civ.P. ll(b)(l), contains allegations or factual contentions that lack
evidentiary support, Fed.R.Civ.P. 1 l(b)(3), or contains denials of factual
contentions that are not warranted on the evidence. Fed.R.Civ.P. 1 l(b)(4).
Clarkv. United Parcel Service, Inc., 460 F.3d 1004, 1008 (8th Cir. 2006). Furthermore, "Rule 11
sanctions are imposed only in response to claims that are not 'warranted by existing law or by a
nonfrivolous argument for the extension, modification, or reversal of existing law." MHC Inv.
Co. v. Racom Corp., 323 F.3d 620, 623 (8th Cir. 2003) (quoting Fed.R.Civ.P 1 l(b)(2)). Fatal to
Davis's claim that Rule 11 has application here, however, "Rule 11 expressly does not apply to
disclosures and discovery requests or responses subject to Rules 2[6] through 37." Ideal
Instruments, Inc. v. Rivard Instruments, Inc., 243 F.R.D. 322, 334 (N.D. Ia. 2007) (citing
Fed.R.Civ.P. 1 l(d) 5) (emphasis in original). See Perkins, 965 F.2d at 601-02 (upholding Rule 11
sanctions based on motion practice unrelated to discovery). Here, Davis came into possession of
Exhibit 2 through Defendants' initial discovery disclosure. Beyond that, however, Exhibit 2 has
not been relied upon by Defendants, not even in their pending motion for summary judgment,
Doc. 68. Therefore, Rule 11 does not apply.
Unlike sanctions imposed under Rule 11, which are imposed at a court's discretion,
Federal Rule of Civil Procedure 26 "requires sanctions if a violation of the rule is found." Books
Are Fun, Ltd. v. Rosebrough, 239 F.R.D. 532, 550 (S.D. Ia. 2007) (citations omitted). "Rule
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whenever incurred, that would not have been sustained had the opponent conducted itself
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properly."' Id. (quoting Johnson Int'/ Co. v. Jackson Nat'/ Life. Ins. Co., 19 F.3d 431, 439 n. 10
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26(g) sanctions are designed 'to deter abuse and compensate the opposing party for all expenses,
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Part (d) reads, "This rule does not apply to disclosures and discovery requests, responses, objections, and motions
under Rules 26 through 37." Fed.R.Civ.P. 1 l(d).
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(8th Cir. 1994) (internal quotations and citation omitted)). Rule 26(g) sanctions are proper
"'when the signing of [a discovery request] is incomplete, evasive or objectively unreasonable
under the circumstances."' Id. (quoting St. Paul Reinsurance Co. Ltd. v. Commercial Fin. Corp.,
198 F.R.D. 508, 515 (N.D. Iowa 2000)) (alteration in original). See Oregon RSA No. 6, Inc. v.
Castle Rock Cellular of Oreg. Ltd. Partnership, 76 F.3d 1003, 1007 (9th Cir. 1996) (using "an
objective standard to determine whether a party or attorney has responded or objected to a
discovery request for an improper purpose."). "The most obvious situation where sanctions are
appropriate occurs when a party or its attorney submits a false discovery document."
Rosebrough, 239 F.R.D. at 551 (citing Perkins, 965 F.2d at 600 n. 5). Submitting a false
discovery document-or fabricating evidence--"has been referred to as 'the most egregious
misconduct' which justifies a finding of fraud upon the Court." Interpreter Services, Inc. v. BTB
Technologies, Inc., No. CIV 10-4007, 2011 WL 6935343, at *8 (D.S.D Dec. 29, 2011) (quoting
In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions (Antitrust Actions), 538
F.2d 180, 195 (8th Cir. 1976), abrogation on other grounds recognized by Briscoe v. County of
St. Louis, Missouri, 690 F.3d 1004, 1011 n. 2 (8th Cir. 2012)). For a court to find such a fraud
has been committed, it "must be supported by clear, unequivocal and convincing evidence."
Antitrust Actions, 538 F.2d at 195 (citing Barr Rubber Products Co. v. Sun Rubber Co., 425 F.2d
1114, 1120 (2nd Cir. 1970), cert. denied 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970)).
Here, Davis has not met the burden of proof required in order to impose sanctions on
Defendants. Davis's motion is premised upon conclusory arguments with limited factual basis
beyond her denial that she ever sent the email. The crux of Davis's factual basis for argument is
that the heading and font of the "falsified" email in Exhibit 2 differs in appearance from the two
other emails in the chain. Doc. 90-5. Outside of that, Davis offers no other evidence as to the
email's inauthenticity other than her own denial. See Plaintiffs Brief in Support of Amended
Motion for Sanctions, Doc. 90, at 8-9 ("[T]he font of the reply e-mail is different from the font of
the original e-mails exchanged between Plaintiff and Sullivan on the same date. The heading of
the alleged reply e-mail also differs substantially from the two prior e-mails. Unlike the other emails, the names of the persons to whom the emails were sent from and to are underlined in
Plaintiffs alleged reply e-mail. Further, in the two prior e-mails, the 'Sent' line is directly below
the "From" line and lists the date and time sent in the following manner: 'Monday, November
29, 2010 12:31 PM' and 'Monday, November 29, 2010 12:38 PM.' The 'Sent' line on Plaintiffs
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alleged reply e-mail, however, is indented several inches. The format of the date and time also
differs from that of the earlier e-mails: 'Sent: 11/29/2010 2:22:30 PM.'). These formatting
distinctions together with her denial, however, fail to meet the clear and convincing evidence
standard. 6
Examining the inconsistencies found in one of Davis's own exhibits, "Plaintiff's Exhibit
B" attached to Davis's brief in support of sanctions, Doc. 90-3, weakens Davis's argument
regarding Exhibit 2. Plaintiff's Exhibit B is another version of Exhibit lA. Absent from
Plaintiff's Exhibit Bis the claimed fake reply email from Davis to Sullivan. Instead, like Exhibit
lA, Plaintiff's Exhibit Bis the forwarded two-email chain from Davis's CESCO email account
to her Yahoo account. The uppermost email heading in Plaintiff's Exhibit B is distinct in font,
spacing, and arrangement from the headings of the emails lower in the same chain. The next
heading down is itself distinct from all other headings in the chain. Based on Davis's reasoning
regarding Exhibit 2, the first two emails contained in Plaintiff's Exhibit B must be inauthentic. It
appears to the Court, however, no less plausible that the top email in an email chain bears a
distinct heading from the remaining emails in the same chain in order to indicate to the reader
which is most recent. See Affidavit of Becky Purington, Doc. 95-2, at 1, 3, 6-7, 9, 12, 16, 24, 33
(top email in email chains all bear distinct headings compared to other emails in the same chain);
Second Supplemental Affidavit of Lisa A. Davis, Doc. 97-1, at 1 (same). Davis offers no
argument or evidence making her explanation more compelling than others. As a result,
considering all of the evidence, she has failed to proffer clear and convincing evidence. See
Bright v. First Sr. Financial Group, No. 12-360, 2013 WL 3196392, at *9 (E.D. Penn. June 24,
2013) (refusing to find emails "conclusively fake" based solely on inconsistent dates on the
emails in the chain).
As discussed, there exist two email chains in issue-Exhibit 2, containing the "false" reply
email from Davis, and Exhibits lA and lB, which are two copies of the same chain and do not
contain the "false" reply. See, supra, "Background" and note 4. Exhibit 2, attached to Davis's
amended motion for sanctions, Doc. 90-5, was retrieved from Defendants' email archival system.
Defendants' Brief in Opposition, Doc. 93, at 4. Exhibit lB, attached to Defendants' motion for
summary judgment, Doc. 69-9, on the other hand, is from Davis's personal Yahoo email
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In her Reply Brief, Davis recounts "[o]ther duplicitous acts of Defendants" in support of her motion for sanctions.
Plaintiffs Reply Brief, Doc. 96, at 3-5, 7-8, 9. However, because Davis's motion for sanctions is predicated solely
on the claimed falsified email, these other acts by Defendants will not be considered by the Court.
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account. Defendants' Brief in opposition, Doc. 93, at 4. As Defendants argue in their opposition
brief, "Even if the fonts of [Exhibits lB and 2] can be viewed as different fonts apart from sizing
and spacing, the difference does not imply that one email was altered or 'doctored up.' The
emails were simply accessed from different sources and different email servicing platforms." Id.
The Court finds Defendants' assessment to be at least as plausible as Plaintiffs
For the sake of comparison, Exhibit lA, Doc. 97-2, and Exhibit lB, Doc. 69-9, appear to
be two copies of the same two-email chain, but look markedly different. Exhibit lA contains
long, horizontal, parallel lines separating each email; Exhibit lB does not. In addition, the
spacing of the email text in Exhibit lA is much longer than the spacing in Exhibit lB. Yet, Davis
does not assert that one copy was faked and the other not. Instead, Davis asserts that one copy,
Exhibit lA, was retrieved from Davis's CESCO email account and the other, Exhibit lB, from
Davis's Yahoo email account. Based on Davis's argument for sanctions, however, because of the
differing styles of Exhibits lA and lB, a Court should infer that one was faked. This Court
rejects such an inference, however. Likewise, the Court rejects the argument that Exhibit 2 must
be falsified based solely on the premise that it differs in font and style from Exhibit lB.
Additionally, simply because Exhibit 2 contains a third email not present in Exhibit lB is not
sufficient evidence that Exhibit 2 was faked. As Defendants note in their brief in opposition, it is
plausible that Davis simply forwarded the two-email chain between her and Sullivan to the
Yahoo account directly from her CESCO email inbox. Doing so would not include her response
email. Defendants' Brief in Opposition, Doc. 93, at 5 ("Davis would have had the option to
forward an email from either her inbox or sent box. Davis's election to forward an incoming
email does not speak to whether she sent a response. Therefore, this allegation does not support a
finding that the email was altered."). Premising an argument of fraud on the existence of a third
email in Exhibit 2 and the differing appearances and the denial of sending the additional email is
not clear and convincing evidence in the face of the alternate plausible explanations. 7
Thus, while the Court finds that Davis has presented insufficient evidence to support her
motion for sanctions, she would still be free to testify at trial that she did not send the third email
contained in Exhibit 2. See Second Supplemental Affidavit of Lisa A. Davis, Doc. 97, at 3
(referring to the reply email contained in Exhibit 2, Davis asserts, "This is a totally false,
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In fact, Davis's own expert, a forensic document examiner retained in connection to her pending motion to compel,
Doc. l 01, states that, on this current record, "there is no means of knowing the true origin or destination of[]
[Exhibit 2]." Affidavit of Michael N. Wakshull, Doc. 106-1 at 3.
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fictitious statement that I never made, and in which I never sent to Mr. Sullivan."). The
authenticity of and whether or not Davis sent the disputed reply email would be for the jury to
decide and this Court's decision on Davis's motion for sanctions will not affect her ability to
contest the email at trial. See Asch Webhosting, Inc. v. Adelphia Business Solutions Inv.
(Adelphia), LLC, No. Civ.A. 04-2593(MLC), 2006 WL 1098235, at *7-8 (D.N.J. Mar. 31, 2006),
aff'd 362 Fed.Appx. 310 (3d Cir. 2010) (holding that questions of fact remained as to whether
certain emails were sent and that the jury would be capable of judging inconsistencies in
testimony and assessing witness credibility) (unpublished opinion). See also Guang Dong Light
Headgear Factory Co., Ltd. v. AC! Intern., Inc., No. 03-4165-JAR, 2008 WL 53665, at *13 (D.
Kan. Jan. 2, 2008) (concluding that any finding as to the propriety of a sent email is a question of
fact requiring a credibility determination and "a determination of intent and motive by a
factfinder."). Davis invites this Court to conclusively find as fact that Exhibit 2 is a fake. The
Court rejects the invitation and, instead, will allow a jury to judge the authenticity of the email
for itself. "Accordingly, the Court will not impose sanctions where the Court would have to
'implicitly engage in fact finding that is typically reserved for a jury."' Adelphia, 2006 WL
1098235, at *7 (quoting In Re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 796 (3d
Cir. 1999) (citation omitted)).
Davis also asserts that supplementing their response to the EEOC is evidence that
Defendants manufactured Exhibit 2. Plaintiffs Reply Brief, Doc. 96, at 7 ("[T]his allegation is
nonsensical. Given the fact that Skinner accessed Plaintiffs CESCO email account to obtain the
November 29, 2010 email that she provided to the EEOC on August 1, 2011, there was no reason
for her to access the CESCO archives to retrieve the email a second time on August 23, 2011.").
Through Defendants' supplementation, Davis wishes this Court to draw the conclusion that
Defendants fabricated the email subsequent to their August 1, 2011 response to the EEOC in an
effort to mislead the EEOC in its investigation. Davis offers no substantiation as to why her
explanation should be accepted, as opposed to others, aside from her conclusory argument,
which the Court rejects. The Court does not condemn what appears to be double-checking or
following-up one's research through different source material. In fact, based on Davis's own
argument, Skinner could have accessed Exhibit lA directly from Davis's email and Exhibit 2
from CESCO's archival system. Plaintiffs Reply Brief, Doc. 96, at 7.
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Instructive here is Interpreter Services, Inc. v. BTB Technologies, Inc., No. CIV 104007, 2011 WL 6935343, at *8 (D.S.D Dec. 29, 2011). There, the defendants, BTB
Technologies, moved for sanctions pursuant to Federal Rules of Civil Procedure 12, 26, 37, and
the court's inherent constitutional authority. During an evidentiary hearing, the parties agreed
that an exhibit entered into the record by the plaintiffs was not the same version that was
presented by the defendants to the plaintiffs counsel. BTB Technologies, 2011 WL 6935343, at
*7 ("During the November 1 evidentiary hearing, the parties agreed that EX 1 is not the version
of BTB 0434, 0435, and 0436 that was delivered by the defense to Christenson's office."). The
email the parties agreed was faked purported to be an exchange between defendant-Thomas
Dafnos and Wesley Waite, Dafnos's previous business partner. The subject matter of the email
was a plan between Dafnos and Waite to "ruin" Kasey Entwisle, owner and sole shareholder of
plaintiff Interpreter Services, Inc. Id. at *1 n. 3. According to the BTB Technologies court,
In addition to the parties' agreement, a review of EX 1 supports the conclusion
that the emails are fake. For example, the text is misaligned on the page. The
Bates numbers are not uniformly placed as they would be by a computer
generated program, and in one instance the number is partially obscured. In one
message, the subject line says "I Need ..... " but in the reply to the same message it
says "I need .... " In one of the messages, Wes Waite, Sr.'s name is missspelled
(sic) as "Wes Waites, Sr. (sic) Finally, there is an obvious "cut and paste" line
across the bottom of the fake BTB 0435.
Id. After considering the testimony and evidence presented, the BTB Technologies court
concluded that sanctions had to be imposed. In so concluding the court noted,
Despite knowing that Bratkiewicz[, BTB 's counsel,] and the purported sender and
receiver of the fake emails (Dafnos and Waite) all denied their authenticity under
oath, on April 14, 2011, Christenson supplemented the Plaintiffs Rule 26 Initial
Disclosures to use the fake emails as part of the record in this case, if not as
evidence. There was no purpose to serve by placing the fake emails into the
record if not to enhance the Plaintiffs position in this lawsuit.
Id. at *8.
Here, unlike the fabricated email chain in BTB Technologies, the parties have not all
agreed that Exhibit 2 is fake. Moreover, the email chain in BTB Technologies contained obvious
flaws and inconsistencies that do not exist here. Davis has pointed only to the fact that the
uppermost heading on Exhibit 2 is distinct from the remaining headings in the email. In light of
the discussion above comparing other email headings in the record, however, Davis's argument
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falls short of clear and convincing evidence. The constant among Exhibits lA, lB, and 2 is the
initial two-email exchange between Davis and Sullivan. Outside of the font and style of Exhibit
2's heading and the presence of the reply email, however, there are no misspellings, syntactical
differences, partial obstructions, or obvious copying and pasting among the three Exhibits as
there was in BTB Technologies. Again, any question surrounding Exhibit 2 regarding the email's
authenticity should and will be left for the jury to decide. The Court will not take that question
away from the jury based on the current record. To that end, the Court will also not impliedly act
as the finder of fact by imposing sanctions here.
CONCLUSION
Although a third email exists in Exhibit 2 that is not contained in either Exhibit lA or lB,
Davis has failed to convince this Court by clear and convincing evidence that the claimed email
in question from Plaintiff is a fraud created by Crescent Electric. Unlike BTB Technologies, the
parties to this litigation do not all agree that the email in issue was faked. Instead, Defendants
have offered plausible alternative reasons for Exhibit 2's presence in the record. Davis has failed
to show why her explanation should be accepted over others. Instead, Exhibit 2's authenticity
and whether it is legitimately present in the record will be assessed by the jury after hearing from
both Davis and the Defendants.
The Court is concerned that the additional discovery that this evidentiary issue will
present is both going to delay the case and cost both parties more effort and expense. Given that
at this point the issue of the email will be presented to the jury, the Defendants will presumably
retain an expert on the issues presented concerning the authenticity of this email. Given the
questions presented, the Court is going to allow Plaintiffs the additional discovery that has been
resisted by the Defendants.
Although this email does present a question to go to the jury, the Court also has to
consider the application of Rule 403 of the Federal Rules of Evidence. The claimed email is
peripheral to the issues in this case. The trial scrap of the authenticity of the email is going to
unduly delay the trial, it is going to largely be a waste of time, and it has a good probability of
confusing the true issues in the case and misleading the jury. The Court recognizes that but for
these 403 concerns, the Court would simply present this issue to the jury. Without ruling at this
time on its 403 concerns, the Court suggests that the parties consider the following: If the email
issue by agreement of all of the parties does not proceed, then there will be no discovery as the
12
Court is otherwise going to allow, and the claimed email will not be offered for consideration by
the jury.
The parties must notify the Court within 20 days from the date of this Order whether or
not they agree with this proposal. If not, the discovery will proceed even though the Court might
still exclude the claimed email because of Rule 403 concerns.
IT IS ORDERED that Plaintiff Lisa A. Davis's Amended Motion for Sanctions Against
Defendants, Doc. 89, is denied without prejudice. The parties will bear their own attorneys' fees
and costs. Within 20 days from the date of this Order, the parties will advise the Court whether
or not they have agreed to the Court's proposal. If not then, 20 days thereafter, the parties shall
submit simultaneous briefs on the Rule 403 concerns.
Dated this 21st day of April, 2016.
BY THE COURT:
ATTEST:
JOSEPH HAAS, CL~
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