Court Disapproves Defendant’s “Hide the Ball” Discovery Gamesmanship

Hide the Ball game of deception A recent case in Ohio illustrates a poor electronic discovery strategy by a defendant employer in a wrongful termination case. May v. Pilot Travel Centers,LLC, 2006 WL 3827511 (S.D. Ohio December 28, 2006). The defense here has seriously annoyed the presiding district court judge, who, right or wrong, is now convinced that missing electronic records are evidence that the defense has engaged in “hide the ball gamesmanship and deception.”   

The plaintiff here, a Wendy’s franchise restaurant manager, alleged that he was fired for exercising his rights to be with his newborn child under the Family and Medical Leave Act. The employer defended by claiming that the discharge was for cause.  The employer claims the manager had been using the restaurant’s computer to “cook the books” electronically.  The manager was alleged to have altered the records to make the restaurant look more profitable.  In this way, he was able to increase his formula bonus payments.  For instance, the plaintiff was alleged to have altered vendor payment dates, and to have revised employee time records to avoid overtime compensation.

After the discovery period ended in nine months, apparently with no discovery disputes, the defendant moved for summary judgment.  The plaintiff responded with a motion for sanctions for spoliation, alleging that defendant had destroyed evidence, namely some of the computer records at issue in the case.  The defendant employer responded vigorously to the sanctions motion.  It moved to strike the affidavit supporting the motion, and to be awarded attorney fees because it alleged the sanctions motion was meritless and filed in bad faith.

Defendant first made a procedural argument, correctly pointing out that there had been no motion to compel, not even a phone call from plaintiff’s counsel.  Defendant argued that because of these omissions there was no basis for a sanctions motion.  The court  disagreed with this procedural argument.  Aside from parsing a construction of the local discovery rules involved, the court was strongly influenced by the fact that defendant produced new evidence after the plaintiff filed his motion for sanctions.  The court referred to this as a “curiously belated supplementation” and held:

The suspect timing of Defendant’s post-motion supplementation suggests improper conduct. The documents were in Defendant’s possession and should have been turned over far before they were. Defendant’s violation of its duty to supplement in a timely manner was neither harmless nor substantially justified. This Court therefore finds Defendant’s conduct to be sanctionable.

The Court was also disturbed by defendant’s arguments that some of the documents were not previously produced because they were not specifically requested, pointing out the mandated initial disclosure requirement under Rule 26(a)(1)(B). The Court was also disturbed by what it called the defendant’s “coy avoidance” of whether it had destroyed computer records as plaintiff alleged.  Apparently the defense responded to the spoliation accusations by stating that the “documents might have been lost when defendant converted to a new computer system.”  That response did not go over well.  The court stated:

If the records exist, then Defendant should know this and must produce them. If the records no longer exist in any form, then Defendant should be able to provide this answer and an explanation as to how and why the records were destroyed-and by whom. To avoid the answer by blaming Plaintiff at this juncture creates an inference of gamesmanship that disturbs this Court.

The district court buttressed its holding by reliance on the Sixth Circuit’s remarks:

The Sixth Circuit has recognized that “[o]ur system of discovery was designed to increase the likelihood that justice will be served in each case, not to promote principles of gamesmanship and deception in which the person who hides the ball most effectively wins the case.” Abrahamsen, 92 F.3d at 428-29.

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