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Lee v. Trees, Inc.

United States District Court, D. Oregon, Portland Division

November 6, 2017

SARAH LEE, Plaintiff,
TREES, INC., a Delaware corporation, and PAUL SIMS, an individual, Defendants.



         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. 103, 104.)[1] For the reasons detailed below, Defendants' Motion is granted.[2]


         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 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 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 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.)

         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 ...

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