Discovery failures, spoliation prompt EDVA to dismiss whistleblower retaliation lawsuit

by Ben Vernia | May 7th, 2014

On April 24 in the Eastern District of Virginia, Judge Anthony J. Trenga granted a defense contractor’s motion for sanctions against a former employee who alleged that the company had retaliated against him for his making multiple disclosures of fraudulent billing practices. The company argued that the plaintiff had resisted complying with his discovery obligations, falsely represented his preservation of evidence, intentionally deleted and destroyed evidence, and failed to comply with a December 2013 order by the court which had granted the company’s motions to compel.

A magistrate judge had found that the plaintiff’s conduct in discovery warranted dismissal under a four-part test employed by the Fourth Circuit:

  1. Whether the non-complying party had acted in bad faith;
  2. The amount of prejudice caused by the noncompliance;
  3. The need for deterrence of the particular sort of noncompliance; and
  4. Whether less drastic sanctions would have been effective.

Judge Trenga adopted the magistrate’s report and recommendations in full, and concluded that the plaintiff had, from prior to filing suit through this year, engaged in the willful and intentional spoliation of evidence, including the complete wiping of his iPhone in January (approximately one month after the court had granted the defendant’s motion to compel and warned him of possible sanctions). The court ordered the plaintiff to pay his former employer’s costs and fees for the motions to compel and for sanctions. (In a subsequent filing, the company claimed $72,500 in these expenses.)

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