Virginia Lawyers Weekly VA Lawyers Weekly
In a court battle in which one dentist is suing another for defamation and for firing him, a circuit judge has ordered the defendant dentist to pay $140,554.65 in attorneys’ fees and costs for deleting digital records requested in discovery.
Fairfax County Circuit Judge Michael F. Devine said he also would instruct the jury they may presume the missing evidence was unfavorable for the practitioner who engaged in “reckless” spoliation of evidence.
In the litigation, a Centreville dentist claims he was wrongly fired and defamed in a letter to patients after he reported safety lapses at the Alexandria-based dental practice where he worked. The letter accused the plaintiff dentist of refusing to follow state “guidelines and regulations” governing dental practice.
The spoliation ruling and fee award is documented in two orders entered by Devine and a transcript in which the judge addressed what he termed a “disaster” of paper discovery.
Letter to patients
Richard Grundy was one of seven dentists working for Brown Dental Practice, according to the allegations in an amended complaint. He says when the practice failed to acknowledge problems he reported, he notified “appropriate regulatory bodies.” He claims owner and president Charles Brown then fired him and sent a disparaging letter to thousands of patients in retaliation.
Brown’s letter, attached to Grundy’s complaint, referenced professional regulations and said Grundy had “refused to adhere to some of those guidelines/regulations and the board of dentistry is currently looking into those issues.”
The letter also said there were “issues” related to Grundy’s handling of patients’ protected information.
Discovery problems
Grundy sued Brown for defamation, breach of contract and other claims. After what his lawyer described as a struggle over discovery, Grundy last year moved for a finding of contempt and for sanctions alleging various discovery lapses by Brown and his practice.
At a Jan. 23 hearing, Devine lamented “major problems” with production of documents, according to a transcript. He said he thought Brown’s office was aware of severe problems with production “and they just sent it over in a big mess.”
“All of that, I think, is deserving of a fee award being assessed against Dr. Brown for that mess,” Devine said.
Devine then addressed evidence of Brown’s office purging “audit trails” of documents stored in hard drives. “Dr. Brown decided to delete a bunch of data, and that’s completely unacceptable,” the judge said.
“I think there is evidence to support a finding that it was done with intent to deprive the other party of use. I think a reasonable fact finder could make that finding,” Devine said later in the hearing.
Brown had received a letter requesting preservation of records “and he charged ahead anyway, knowing that he was under an obligation to preserve the data,” Devine said. “That, to me, is the very definition of reckless.”
Devine declined to make a ruling on Brown’s credibility in advance of a jury trial.
“I’ll admit, I have severe questions as the credibility of Dr. Brown and some of the people that are in his employment, but I’m not convinced that it’s my place to resolve those issues, to decide Dr. Brown is committing perjury or not committing perjury,” Devine said.
The judge said he would instruct the jury they may presume the missing evidence was unfavorable to Brown “and they can draw whatever inference they want as a result of that.”
After hearing evidence of fees incurred, Devine gave the defendants 90 days to pay $140,554.65, consisting of $132,616.25 in attorney’s fees plus costs of $7,938.40.
The case went to a jury in March for “six tortuous days,” according to Grundy’s lawyer, Alan B. Croft of Leesburg. The jury trial was cut short on March 16 when the pandemic forced courts to shut down. Croft said he wasn’t sure whether trial would have to be resumed or started all over once jury trials resumed.
The Supreme Court of Virginia approved the Fairfax County Circuit Court jury plan on Sept. 17. Croft said the status of the dentists’ dispute was uncertain.
Brown and his practice are represented by Brian V. Ebert of Fairfax, who said he disagreed with the fee award and expected to appeal the issue at the conclusion of the case.
