Posted by Ellyce Cooper and Brent Nichols
It is not uncommon for courts to impose a variety of sanctions on parties who fail to comply with their discovery obligations. A court in the Eastern District of Virginia, however, took the rare step of ordering dismissal of all claims with prejudice as a sanction for a False Claims Act plaintiff’s repeated spoliation of evidence.
In Hosch v. BAE Systs. Info. Solutions, Inc., No. 1:13-cv-00825, 2014 WL 1681694 (E.D.Va. April 23, 2014), Plaintiff brought suit under the anti-retaliation provisions of the False Claims Act, alleging that his employer had punished him for making disclosures regarding its allegedly fraudulent billing practices.
Defendant served discovery requests seeking the inspection and copying of Plaintiff’s cell phones, computers, and mobile device. Plaintiff initially refused to provide them and Defendant successfully moved to compel, obtaining a court order requiring Plaintiff to turn over his devices for a forensic inspection. The forensic inspection revealed that Plaintiff had systematically wiped the data from his devices, and Defendant moved for sanctions. In recommending dismissal as a sanction, the magistrate reasoned that, “Plaintiff’s severely egregious conduct in this matter, including document theft, spoliation, possible perjury, and obstruction of discovery, mandates a proportionately severe response by this Court.”
The district court then affirmed the magistrate’s recommendations, finding that “the only remedy that can adequately address that prejudice [suffered by defendant] is dismissal with prejudice.” The Court also ordered Plaintiff to pay the attorneys’ fees that Defendant incurred in filing its motions to compel and motion for sanctions.
This decision is a noteworthy development in False Claims Act jurisprudence. The potential sanction of dismissal with prejudice should make relators more cautious when it comes to their preservation and discovery obligations.