Court Dismisses Complaint as Discovery Sanction for "Extensive and Egregious Misconduct" : Electronic Discovery Law

Plasse v. Tyco Elecs. Corp., 2006 WL 2623441 (D. Mass. Sept. 7, 2006).: "In this wrongful termination case, defendant Tyco sought to prove that plaintiff had misrepresented his credentials when he applied for employment. At issue were several versions of plaintiff’s resume, some of which had indicated he held an M.B.A.; plaintiff suggested those may have been submitted by “someone else,” possibly a recruiter or headhunter, and claimed he would have indicated he was only a “candidate” for an M.B.A. Previously, Tyco had filed a motion to dismiss the case, alleging that plaintiff had lied at his deposition and fabricated documents. The court denied the motion without prejudice, finding that the evidence was not sufficiently clear and convincing to justify such a serious sanction.

Tyco then moved to compel the production of plaintiff’s laptop and further deposition testimony. The court granted Tyco's motion over plaintiff's objection, and ordered that plaintiff to submit to a further deposition by July 22, 2005, for the sole purpose of identifying computers and other media storage devices used by him during relevant time periods, and produce, by July 29, 2005, all computers and media storage devices presently in his possession, under his control or accessible to him, for inspection by Tyco’s expert.

The forensic inspection of plaintiff’s laptop and disks showed evidence of tampering, including: deleted resumes, system date and time manipulations, access histories showing that various relevant documents were accessed after the court’s order and before plaintiff’s second deposition, and other fragments of relevant documents and emails that had not been produced. Tyco filed a renewed motion to dismiss the complaint, alleging that plaintiff: (1) testified falsely during his deposition; (2) fabricated a resume to support his false testimony; and (3) deliberately deleted, destroyed, or concealed documents after he was put on notice that such documents were relevant. Tyco argued that the only appropriate sanction for plaintiff’s acts was dismissal of his complaint and an award of attorney's fees and expert costs.

The court agreed . . . ."