In Gunter v. Alutiiq Advanced Sec. Sols., LLC, No. 1:20-cv-03410-JRR (D. Md. March 2, 2023), the District Court of Maryland dismissed Plaintiff’s wrongful termination action on the merits with prejudice after finding clear and convincing evidence presented by a forensic expert that Plaintiff committed spoliation of evidence and fraud. The expert opined that after the action was filed, Plaintiff deleted certain text messages, and that other text messages produced in support of his claims were “altered” and “not genuine.” At his deposition, Plaintiff admitted he deleted text messages responsive to Defendant's Rule 34 requests, but claimed that he didn't think they were relevant. In response, the court ordered Plaintiff to turn his cell phone over to the forensic expert. The implausibility of the text messages was the subject of motions prior to Plaintiff’s deposition, resulting in an order precluding Plaintiff from entering the fraudulent text messages into evidence and permitting Defendant to use such evidence to impeach Plaintiff’s credibility at trial. But as the case progressed, dismissal on the merits with prejudice was deemed the appropriate remedy by the court. A few days after the deposition, Plaintiff's counsel moved to withdraw from the case, which was granted, and Plaintiff proceeded pro se.

Dismissal with prejudice was deemed the appropriate remedy by the court based upon its consideration of Rules 26, 37, and 41 of the Federal Rules of Civil Procedure, as well as the inherent authority vested with the court to sanction a party for wrongful conduct.  After finding Plaintiff was afforded due process, the court considered the following factors: (a) Prejudice to the Judicial Process, the Administration of Justice and the Defendant; (b) Bad Faith and Personal Responsibility/Culpability; (c) Need for Deterrence; (d) Effectiveness of Less Drastic Sanction, Policy of Trying Cases on the Merits, and Public Interest. The court noted that Plaintiff “demonstrated that he lacks contrition or anything of the sort; instead, he continues to assert he lacks responsibility or fault for his misdeeds, and blames others. Further, [Plaintiff]...demonstrated that he ‘doubles down’ instead of correcting his behavior when confronted or exposed. These observations of the court weigh heavily in the court's final decision-making as to the appropriate sanction.”

In addition, Plaintiff was ordered to pay Defendant $10,000.00 of the $13,577.38 expended by Defendant for engagement of the forensic expert, based on Plaintiff’s ability to pay pursuant to Rule 11 of the Federal Rules of Civil Procedure.

This case underlines two important lessons. First, parties and their counsel should always make a good-faith effort to preserve any relevant electronically stored information, including text messages. Second, if parties and their counsel come across a mistake, they should take responsibility for such mistakes immediately, rather than “doubling down” or blaming others.