Virginia Lawyers Weekly VA Lawyers Weekly
Where a defendant who was sued for injuries during the “Unite the Right” rallies ignored discovery requests and court orders over 18 months, and attorneys’ fees had already been awarded as a sanction, additional sanctions were warranted, including that certain contested facts were deemed admitted, documents were presumed authentic and an adverse-inference instruction would be given.
Background
In this lawsuit, plaintiffs, who were injured during the “Unite the Right” rallies, allege that defendants “conspir[ed] to engage in violence against racial minorities and their supporters” in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1985 and related state laws. This matter is before the court on plaintiffs’ third motion for nondispositive Rule 37 sanctions against defendant Elliott Kline.
Plaintiffs’ pending Rule 37 motion seeks three evidentiary sanctions against Kline. First, they ask the court to “deem [the] facts listed in Appendix A to this Motion established,” That list includes certain factual issues that plaintiffs must prove at trial to hold Kline liable for conspiring to engage in violence against racial or religious minorities and their supporters.
Second, plaintiffs ask the court to “deem authentic for purposes of Rule 901 of the Federal Rules of Evidence . . . any documents that Plaintiffs have a good-faith basis to believe that Kline created, including all documents from the social media accounts listed in Appendix A to th[eir] Motion, as well as any photographs taken by or depicting Kline.”
Third, plaintiffs ask the court to “instruct the jury that Kline chose to intentionally withhold his documents, and that the jury may draw adverse inferences from that fact, including that Kline chose to withhold such documents because he was aware that such documents contained evidence that Kline conspired to plan racially motivated violence at Unite the Right.”
Analysis
Nearly three years ago, plaintiffs served Kline with discovery requests for information and materials directly relevant to the claims and defenses in this case. His proper responses or objections were due by Feb. 26, 2018. Kline did not respond. He then disobeyed multiple court orders directing him to provide or permit discovery of the same materials within his control.
In August 2019, the court found that Kline acted in bad faith by stonewalling and ignoring the court’s orders over the previous 18 months—and that such misconduct must obviously be deterred lest any other litigant think he or she can behave this way in federal court. At that point, however, “we [were] not yet to the point” that plaintiffs could not “‘present evidence essential to [their] underlying claim’” against Kline.
Moreover, Kline recently assured the court and plaintiffs that he understood his discovery obligations and he intended to comply with the court’s orders that he participate in good faith going forward. Kline did not follow through. In fact, Kline responded to two federal judges’ patient indulgence with broken promises, halfhearted steps toward compliance and countless sworn statements that were “evasive, internally inconsistent, or simply not believable.” Thus, there is no question that Kline disobeyed this court’s discovery orders in bad faith.
Next, the court must decide which sanctions are “just” based on all the facts in this case and the claims at issue in the court’s prior discovery orders. The court already awarded attorneys’ fees against Kline of $12,528.33 to sanction him for the “evasiveness, delay, and obfuscation” he caused plaintiffs’ ability to develop their case in a just, speedy and inexpensive manner.
The court finds that plaintiffs are entitled to a sanction admitting some of the facts they propose as established against Kline. However, some of the proposed facts are either not supported by the record or are too vague to justify the requested evidentiary sanction. Second, Kline’s admission that he did not even try to preserve any relevant information— despite the fact his attorneys told him to do so—warrants an adverse-inference instruction under either Rule 37(e)(2) or the traditional “spoliation” standard. Third, all documents from the social media accounts listed in Appendix A to plaintiffs’ motion will be presumed “authentic,” subject to rebuttal by any defendant, for purposes of Rule 901 of the Federal Rules of Evidence.
Plaintiffs’ motion for sanctions granted in part, denied in part.
Sines v. Kessler, Case No. 3:17-cv-00072, Nov. 30, 2020,. WDVA at Charlottesville (Hoppe). VLW 020-3-591. 42 pp.
