By Ariel D. Fenster

Seyfarth Synopsis: A case out of the District of Oregon recently dismissed a Plaintiff’s sexual harassment and retaliation claims where the allegations relied on manufactured text messages that Plaintiff failed to produce.

After a break-up, you can’t just fabricate text messages and then sue your former employer. In Lee v. Trees, Inc., the District of Oregon recently dismissed a former employee’s lawsuit, wherein she alleged sexual harassment, retaliation, and wrongful termination. The court dismissed the case when the former employee failed to produce the text messages on which her claims were predicated upon. In Lee, the employee had a consensual romantic relationship with her supervisor. According to the plaintiff, when she sought to end the relationship, she received numerous threats against her job unless she continued the sexual relationship.

After filing administrative complaints with the EEOC and the Bureau of Labor and Industries (BOLI), Lee told the investigators that she had text messages where she asked her supervisor to stop the relationship. Lee said these text messages could prove that after ending the relationship she was fired. Based on paper copies of these alleged text messages, the BOLI issued Notices of Substantial Evidence Determinations and right to sue letters.

During initial disclosures, the employer requested that she provide the text messages “in electronic form in their native format.” The employer also requested that Lee provide her five cell phones (Yes, Five!) that she had during her employment. Lee again only produced paper copies of the texts and only one of her cell phones.

Knowing something was fishy, the employer hired a forensic examiner to review Lee’s cellphone. The forensic examiner determined most of these texts were fabricated and in the drafts box of her cell phone. They were not actually sent! Further, many of the printed texts that Lee submitted were only fragments of longer conversations.

Based on the evidence of falsification, Defendants moved for dismissal and sanctions. The Court determined that this was a spoliation issue. “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.”

Before imposing the sanction of dismissal, the district court must weight several factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F. 3d 337, 348 (9th Cir. 1995).

In looking at the five factors and deciding to dismiss the case, the Court determined that Lee deliberately deceived the Court and wasted the time and resources of the Court, of the Defendants, and of her own attorneys. Further, Lee obstructed discovery by her continuing failure to produce the text messages in electronic format (which now it seems she could not do in the first place!).

The Court dismissed Lee’s case with prejudice and held any lesser sanction would suggest to future litigants that they may manufacture evidence with impunity and suffer no meaningful consequence if caught.

The lesson for all potential litigants is you will be caught. There is another important lesson for employers as well — and that is to keep evidence. Simply put (and perhaps too simplistically put), sometimes it is not enough to have the paper copy of a document, particularly when the communications were all done electronically. Keeping electronic copies of items (and preserving ESI if there is a reasonably foreseeable threat of litigation) is always safe- you never know what may happen, or who might want to go poking through electronic files .

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Labor & Employment Team.