LYNN M. JOHNSON, Plaintiff,
BAE SYSTEMS, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT L. WILKINS, District Judge.
This matter comes before the Court on Defendants' Motion for Sanctions, Plaintiff's Opposition, and Defendants' Reply. The defendants ask this Court to impose sanctions pursuant to its inherent power because the plaintiff falsified medical records that she produced in discovery. After hearing argument from both parties, as well as testimony from the plaintiff, the Court finds by clear and convincing evidence that (1) the plaintiff submitted false medical records to the defendants, and (2) the plaintiff's counsel failed to certify the plaintiff's discovery response and failed to investigate and correct her deficient response. For these reasons, the Court sanctions both the plaintiff and her counsel.
Plaintiff Lynn M. Johnson sued Defendants BAE Systems, Inc., BAE Systems Information Solutions, Inc. (collectively "BAE" or "defendants"), and Thomas S. Schiller, an employee of BAE, for gender discrimination, sexual harassment and retaliation in connection with her employment for the Defense Intelligence Agency ("DIA"). See Plaintiff's Complaint (Pl.'s Compl.) ¶ 1. Ms. Johnson alleged that Mr. Schiller, her trainer and first-liner supervisor, made inappropriate comments about her body and physical appearance, "grabbed and squeezed [her] buttocks, " and made other sexual advances while she was deployed to Iraq for the DIA. See id. at ¶¶ 9, 13, 14. Ms. Johnson also alleges that as a result of Mr. Schiller's behavior, she "experienced severe physical and emotional health problems" and sought medical attention while deployed in Iraq and upon her return to the United States. See id. at ¶ 23. She also alleges that her physicians "diagnosed her as suffering from anxiety and depression, " and that she is "being treated for an adrenal disorder." See id.
Plaintiff's principal claim for damages is emotional distress. Accordingly, the defendants have focused their discovery efforts on the plaintiff's medical history. Defendants hired as an expert Stephen Siebert, M.D., to examine the plaintiff regarding her alleged emotional distress. See Defendants' Motion for Sanction (Defs.' Mot.) at 3. In preparation for Dr. Siebert's examination of the plaintiff, the defendants requested her medical records. As part of her response, Ms. Johnson provided documents that she represented were her treatment records with Charles Hayden, M.D., her primary treating physician after she returned from her deployment in Iraq. See Plaintiff's Opposition to Defendants' Motion for Sanction (Pl.'s Opp.) at 2-4. Although the defendants allege that the plaintiff engaged in other discovery misconduct,  the plaintiff's treatment records with Dr. Hayden are the focus of the defendants' motion.
With this backdrop, the Court finds, by clear and convincing evidence, that the following events occurred:
On April 4, 2013, BAE sent the plaintiff correspondence explaining that, "[g]iven Ms. Johnson's claimed compensatory damages and her retention of an expert to testify regarding same, Ms. Johnson will need to undergo an independent medical examination by our expert, Stephen Siebert, M.D., M.P.H.... Please also ensure that we have all available medical records well in advance of the examination." Defs.' Mot. Ex. D at 1. BAE scheduled Dr. Siebert's medical examination of Ms. Johnson for May 15, 2013. See Pl.'s Opp. at 4.
On May 14, the day before Dr. Siebert's scheduled examination of Ms. Johnson, Ms. Johnson gave her counsel, Mr. Jordan, a copy of what purported to be her treatment records with Dr. Hayden, as well as information regarding her pre- and post-deployment psychiatric screenings. See id. That same day, Mr. Jordan mailed the documents-without a cover letter, bates stamp, or any other means of identifying and describing the disclosure-to BAE. See id. Mr. Jordan did not review Ms. Johnson's treatment records prior to mailing them to BAE. See id. at 5.
BAE received Ms. Johnson's treatment records on May 15, the day of her examination. See Defs.' Mot. Ex. H at 1. At her examination, Ms. Johnson also provided Dr. Siebert with a copy of what purported to be her treatment records with Dr. Hayden. See id. Ex. I at 1. Dr. Siebert's examination of Ms. Johnson made it clear, however, that the medical information provided by Ms. Johnson and her counsel was incomplete. See id. at 6.
On June 14, BAE issued a subpoena and deposition notice for Dr. Hayden. See id. Ex. S. On the same day BAE issued the subpoena and deposition notice, Ms. Johnson called Mr. Jordan and revealed that she had deleted, altered, and forged information in her treatment records with Dr. Hayden. Pl.'s Opp. at 5. She also told Mr. Jordan that she was unsure whether the records they sent to BAE-both the copy Mr. Jordan mailed to BAE and the copy she provided to Dr. Siebert at her examination-were the accurate or falsified records. See id. Mr. Jordan had not retained a copy of the treatment records he mailed to BAE on May 14. See id.
Mr. Jordan told Ms. Johnson to obtain another copy of her treatment records from Dr. Hayden, which Mr. Jordan sent approximately one week later to BAE. See id.; Pl.'s Opp. App. A. Mr. Jordan sent this copy of her medical records as an attachment to a June 24 letter that addressed alleged deficiencies in the plaintiff's response to several of BAE's interrogatories. Defs.' Mot. Ex. P. The letter did not indicate why the plaintiff was resending what appeared to be a duplicate copy of her treatment records, and a reason was not readily apparent because these treatment records were not directly responsive to any of the interrogatories addressed in the June 24 letter. See id. Mr. Jordan's subtle disclosure led BAE to believe that the attachment was an unredacted copy of the treatment records already in BAE's possession, but with a single additional treatment record dated June 18, 2013. See Defs.' Mot. at 9-10.
It was not until BAE began its preparation for the depositions of Dr. Hayden on July 10 and Ms. Johnson on July 12 that it realized the significance of the attachment to the June 24 letter. While examining this attachment and comparing it to the version BAE received on May 15, they uncovered numerous discrepancies. See Defs.' Mot. at 10. The discrepancies are detailed in a chart (without the accompanying footnotes) that was included in Defendants' Motion for Sanctions. See Defs.' Mot. at 10-12.
Plaintiff does not dispute the allegations in the chart. The Court reprints the chart here without any alteration:
Authentic Forged Alteration 7 4 Johnson deleted "in an abusive home" under the heading "List Any Hospitalizations. Exhibit J at 232-233. 9 6 Johnson deleted eight entries under "Major Illnesses" corresponding to each of the eight family members listed. These deleted entries indicate past history of, inter alia, depression, anxiety and bi-polar disease. Johnson replaced each of these entries with a z "0" with a line through it, falsely indicating the absence of any past "Major Illnesses" in her family to be considered in her diagnosis and any related causation opinions in this case. See Exhibit J at 243-244. 8 5 The substance of this entire record was erased and new entries were fraudulently made during this litigation. This record, labeled "Other Medications" is supposed to set out Johnson's history of using antidepressants, antianxiety and other related medications. Johnson not only deleted the entries next to each of the medications which would have revealed she had been on at least six of these medications from 1998 to 2007. She then added entries indicating that she had been on many of these medications during deployment instead and affirmatively stated "No medication prior to deployment Dec 2010-June 2011." See Exhibit J at 237-241. 10 7 Johnson deleted the note next to "PTSD" that states "physical abuse as a child" and circled symptoms under Depression and PTSD not previously indicated by Dr. Hayden. See Exhibit J at 245-246. 11 8 Johnson deleted her weight and all entries under the "Effect" column regarding past psychiatric medications. See Exhibit J at 249. 12 9 Johnson erased the entry "mom has BPD [borderline personality disorder]" under "Family History." Johnson deleted the entire entry under "General Description of Home, Family & Childhood" and subsequently wrote the word "happy" in that space. She also created a new entry by circling "sexual abuse" and writing "child" next to it. See Exhibit J at 251-52. 13 10 Johnson deleted the entry that says "husband drug abuser" and added an evaluation of "High" in the Category "Estimate Intellectual FN." 14 11 Johnson erased the qualifier "RIO" meaning "rule out" in front of "PTSD, " essentially changing the Axis I diagnosis provided by Dr. Hayden. See Exhibit T at 44. Johnson also wrote in the word "group" after "weekly therapy" as the recommended follow-up with a therapist. 15, 21, 24 12, 15, Johnson added an "X" next to the "Very Difficult" choice in response 17 to Question Number 10 on each of the Patient Health Questionnaires. There was no response to Number 10 on any of these documents prior to this recent insertion. 17 30 Johnson inserted the word "(group)" after the entry to follow-up with
Nancy Dunn, LPC. 18 31 Johnson deleted the notation that says "mood 8'" as well as her weight from the upper portion of the record. 19 - Johnson entirely removed the Patient Health Questionnaire completed on December 22, 2011 that indicates a score of "7." Notably, Dr. Hayden testified that the threshold for depression is a" 1 0." See Exhibit T at 71-72. - 13 Johnson created a record stating "weight gain[, ] switch to Wellbutrin 300 mg[, ] gp therapy cont" and then forged Dr. Hayden's initials. The fabricated record then states "Pt called for Refills 4/3112." See Exhibit J at 257-258. 22 - Johnson removed document from records. 25 - Johnson removed December 6, 2012 record stating "cancel late -ill" from records. 26 18 Johnson removed "PLAN- See Linda Bowman for therapy[, ] NO med changes." 27 19 Johnson removed "PLAN- meet with Linda Bowman LCSW at APA[sic]." Johnson also inserted additional check marks next to symptoms under the Mental Status Exam section, including falsely indicating Dr. Hayden had selected (1) Depressed Mood and (2) Poor Concentration during his evaluation. Finally, she wrote in "Refer Dr. Rinn" on the bottom of the record, that the patient should return in "2" months and that face time with the patient was "30" minutes. None of these entries exist on Dr. Hayden's original record. 28 - Johnson removed a record for February 6, 2013 that indicated she "cancelled late." 29 - Johnson removed a record for March 11, 2013 that indicated a "cancellation." - 20 Johnson completely manufactured this March 17, 2013 record and forged Dr. Hayden's initials. Johnson's falsified entry states "Pt called. Req refill. Stated overwhelmed. wants to reschedule." 30 21 Johnson removed Dr. Hayden's note under "Chief Complaint" that indicated "seeing Melissa Von LPC and getting EMDR at APS. Also seeing APS psychiatrist Dr. Rosa." She replaced that entry with "experiencing migraines... disturbed sleep." She also falsely indicated that Dr. Hayden selected "Depressed Mood" under Mental Status Exam. Johnson then erased "Continue EMDR at APS and follow-up with psychiatrist there" and replaced it with "Refer EMDR." Last, Johnson filled in a follow up time of "2 months" despite the absence of any follow-up entry by Dr. Hayden.
II. LEGAL ANALYSIS
The record establishes not only that Ms. Johnson provided Dr. Siebert with falsified treatment records, but also reveals that her counsel, Mr. Jordan, failed to certify the plaintiff's discovery response and then failed to investigate and correct this deficient and misleading response. In light of Mr. Jordan's failure to comply with his obligation under the discovery rules, the Court finds it necessary to review the discovery obligations outlined in Rule 26, in addition to discussing to nature and limitations of this Court's inherent authority to sanction litigation misconduct.
A. Discovery Obligations Under the FRCP
Rules 26-37 of the Federal Rules of Civil Procedure govern the parties' obligations during the discovery process. Rule 26(g) reinforces the various discovery obligations in Rules 26-37 through its certification requirement. See FED. R. CIV. P. 26, Advisory Committee Note, 1983 Amendment ("Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37."). Rule 26(g)(1) requires an attorney-or a party if proceeding pro se -to sign their discovery response. A party receiving an unsigned discovery submission may properly disregard that response. See FED. R. CIV. P. 26(g)(2).
Merely signing a discovery submission, however, does not mean that a party has complied with the certification requirement. An attorney or party has a duty, per Rule 26(g), to perform a reasonable inquiry to determine whether a discovery response is complete and accurate. See FED. R. CIV. P. 26(g)(1); see also FED. R. CIV. P. 26, Advisory Committee Note, 1983 Amendment ("[T]he signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand."). "The duty to make a reasonable inquiry' is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances." FED. R. CIV. P. 26, Advisory Committee Note, 1983 Amendment. This is an objective standard. See id. Courts " must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both" for certifications that violate Rule 26(g) "without substantial justification." FED. R. CIV. P. 26(g)(3) (emphasis added).
Further, the parties' discovery obligations do not terminate after their initial submission. Rule 26(e)(1) requires parties to timely supplement their discovery responses and disclosures upon learning that their response or disclosure is incomplete or incorrect, if the other party is not aware of the additional or corrective information. See FED. R. CIV. P. 26(e)(1). The obligation to "supplement disclosures and discovery responses applies whenever a party learns that its prior disclosures or responses are in some material respect incomplete or incorrect." FED. R. CIV. P. 26, Advisory ...