Virginia Lawyers Weekly//December 2, 2021
Virginia Lawyers Weekly//December 2, 2021//
Where a defendant sued for making allegedly defamatory statements about the plaintiff — a counter-protestor who posted video of the “Unite the Right” rallies in Charlottesville — failed to preserve potentially relevant documents, the plaintiff was entitled to an adverse jury instruction.
This is a defamation case arising out of the “Unite the Right” rallies in Charlottesville in August 2017. Brennan Gilmore was a counter-protester who captured the attack on video. He then posted the video on Twitter and spoke with reporters about what he had seen. Plaintiff alleges that shortly thereafter, Lee Stranahan made defamatory statements about him that were published on the Internet.
Plaintiff argues that by failing to preserve and produce the CJS documents, Stranahan “has deprived Plaintiff of at least 20 different articles that directly addressed Plaintiff and the events at the Charlottesville Unite the Right Rally,” which “would have been probative of Mr. Stranahan’s state of mind with respect to Plaintiff and to the manner in which Mr. Stranahan’s audience received his statements.” Plaintiff asks that the jury be instructed “that Mr. Stranahan chose to intentionally withhold [these] documents, and that the jury may draw adverse inferences from that fact, including that Mr. Stranahan did so because he was aware that the documents contained evidence of his liability.”
From March 2020 through the present, Stranahan has repeatedly delayed compliance with the court’s orders directing him to produce the CJS documents to plaintiff. He repeatedly assured plaintiff’s counsel that he would supplement his productions, and now claims that he cannot comply because the documents plaintiff seeks simply no longer exist. This conduct plainly “demonstrates a pattern of indifference and disrespect to the authority of the court,” and Stranahan’s “callous disregard” for his discovery obligations.
The court cannot find that Stranahan violated the Feb. 5, 2021, order because clear evidence does not exist that he had possession or control of the CJS information at the time of the order as it appears the information was already lost. On the other hand, the court finds by clear and convincing evidence that Stranahan acted in bad faith by failing to obey this court’s July 17, 2020, discovery order.
Stranahan’s failure to produce the CJS documents significantly prejudiced plaintiff. The text of the broken hyperlinks to the CJS documents reveals that they relate directly to plaintiff and are responsive to his discovery requests. Although plaintiff contends that the CJS documents are of little importance, plaintiff need not simply take his word for it.
There is a need to deter this sort of non-compliance. Discovery is a fundamental part of the civil litigation process, which facilitates the orderly and timely exchange of information between the parties. Repeated discovery delays and noncompliance with discovery orders slow the pace of litigation, frustrate the parties’ abilities to prepare for trial and waste scarce judicial resources. Plaintiff has waited over a year for the CJS documents and has patiently granted Stranahan extension after extension. At the eleventh hour, Stranahan now claims the CJS documents are simply “gone.” This significant delay and failure to preserve relevant documents is unacceptable and must be deterred.
A permissive adverse inference instruction is the appropriate sanction. An adverse inference instruction helps “level the evidentiary playing field” at trial by allowing the jury to presume missing evidence was unfavorable to a party who, knowing it was relevant to some issue in the case, willfully caused its loss or destruction. Stranahan may not have, in bad faith, intended to permanently deprive plaintiff of the documents he seeks. But he failed to preserve documents relevant to this litigation and intentionally permitted the domain transfer that “contribute[d] to the loss or destruction of [the] evidence.”
Stranahan has repeatedly failed to respond to discovery requests and a court order. Although he appears to have recently worked with plaintiff to resolve disputes over the Periscope videos and plaintiff’s second and third sets of discovery requests, he did so only after plaintiff moved to compel and after this court admonished him at the June 7, 2021, hearing for failure to comply with this court’s prior order concerning the Periscope videos. He is also proceeding pro se because of a lack of financial resources to hire counsel. And, the parties do not dispute that the CJS documents no longer exist. In light of these factors, the court found it unlikely that further court orders or monetary sanctions alone would achieve meaningful compliance.
Plaintiff’s motion for evidentiary sanctions against Stranahan granted.
Gilmore v. Jones, Case No. 3:18-cv-00017, Nov. 12, 2021. WDVA at Charlottesville (Hoppe). VLW 021-3-520. 23 pp.