By Marjorie Johnson, J.D.
A former network administrator for a school district was barred from using otherwise undiscoverable documents in his race discrimination lawsuit because he created a “dishonest pretext” to effectively steal them from the HR director’s email account and then lied about his actions during an evidentiary hearing. Because the record overwhelmingly confirmed his wrongdoing and that the school district suffered prejudice, a federal court in Pennsylvania precluded him from using the documents, ordered him to return them, and stated that it would determine before trial whether to impose any additional sanctions for his misconduct and false testimony (Spencer v. Pottstown School District, February 13, 2018, Diamond, P.).
Internal investigation of EEOC charge. While serving as the school district’s network administrator, the plaintiff filed an EEOC charge asserting that he was denied a promotion to a director position because of his race and that a Caucasian candidate was hired instead. In response, the district appointed an elementary school principal to investigate the matter with the assistance of its attorney. The plaintiff was interviewed twice as part of the investigation.
Initial authorization. During his first interview on April 19, the plaintiff stated that while helping the HR director with an email problem on February 25, he saw two emails that proved the Caucasian candidate had lied to the district about why he left his previous job. When the district’s attorney asked him to print out these emails, he responded that he couldn’t access the email account without authorization. The next day, the principal sent him an email that authorized him to search the HR director’s email account to retrieve those two specific emails while the principal was present.
On April 27, the plaintiff searched the HR director’s computer while the principal was present and printed out two emails dated February 25. However, neither impugned the Caucasian candidate’s hiring or helped his discrimination complaint. During his second interview on May 19, he complained that he was unable to find “additional emails” he had also seen on February 25 (but had never mentioned before), suggesting that they must have been “deleted and hidden or moved.” No trace of those emails was ever found.
District’s motion to preclude. After the plaintiff filed his lawsuit, he produced 57 pages of documents during discovery that the district argued he “surreptitiously and improperly” obtained from its computer network during his unauthorized search of the HR director’s account. The district thus sought to preclude several categories of these documents. These included emails between the district’s officials and its attorney relating to the lawsuit; minutes of private executive sessions of its finance/personnel committee to discuss personnel and litigation matters (including a conversation about the Caucasian candidate and defense counsel’s discussion of the plaintiff’s discrimination claim); and the district’s draft EEOC position statement prepared by counsel.
Plaintiff’s testimony not credible. After a three-day evidentiary hearing, the court found the testimony of the attorney and the principal to be credible, persuasive, and corroborated by documentary evidence. Conversely, it almost entirely discredited the plaintiff’s “ever-changing, evasive, and dishonest version of events.” Specifically, the record showed that he was given permission to conduct an extremely limited, supervised search of the HR director’s account for the two documents that he first mentioned on April 19. Moreover, these two emails did not impugn the Caucasian candidate’s hiring. Rather, the plaintiff distorted their content to create a “phony pretext” for obtaining access to the HR director’s email account and find documents he hoped to use against the district.
Admittedly searched entire email account. Moreover, during his deposition, he admitted that almost immediately after his April 19 interview, he conducted a complete search of the HR director’s email account and created “static images,” or backups of that account, the entire email server, and his own computer. He also admitted that two hours after his April 27 meeting with the principal, he again searched through the HR director’s complete email account outside of the principal’s presence. However, contrary to his false and contradictory testimony, he was not authorized to conduct these unrestricted searches and was never given permission to “image” the HR director’s account.
Severity of wrongdoing. In determining that sanctions were appropriate, the court found that the plaintiff’s wrongdoing was severe and it rejected his assertion that a triable issue existed as to the level of access and scope afforded to him to conduct email searches. Having discredited the great bulk of his testimony, the court concluded that he understood that he could retrieve only two emails from the HR director’s account and only with the principal present. Using the “phony” pretext he had created, he acted well outside that authority.
Prejudice to the district. The court also squarely rejected his contention that the district did not suffer prejudice since the documents he stole were “fairly encompassed” in his discovery requests.” Few, if any, of the disputed documents would have been discoverable since many were attorney-client privileged or protected by the work-product doctrine. Others were protected from disclosure by the Pennsylvania Sunshine Act, the Educator Misconduct Act, and/or had nothing to do with this case and thus were not discoverable. And even if the district had waived any privilege or protection, his remedy would have been to raise the issue before the court, not to resort to “self help” and “pilfer” the documents themselves.
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