United States District Court, District of Columbia
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 Summary Judgment, Defendants' Motion for Sanctions, and the associated oppositions and replies. Defendants argue that no reasonable jury could find in favor of Plaintiff on any of her claims. The Court agrees with respect to Plaintiff's claims for negligence, battery, and defamation, and grants summary judgment to the Defendants on those claims. Plaintiff's claim for intentional infliction of emotional distress survives.
Defendants also allege that Plaintiff has repeatedly abused the litigation process, and ask that this Court impose the sanction of dismissal pursuant to its inherent power. After hearing argument from both parties, as well as testimony from the Plaintiff and other witnesses, the Court finds by clear and convincing evidence that the Plaintiff destroyed, attempted to destroy, or caused to be destroyed potentially relevant evidence for the second time during the course of this litigation. Although Plaintiff's actions are inexcusable and demonstrate a severe lack of respect for this Court and for the litigation process generally, the Court does not believe that the ultimate sanction of dismissal is warranted. The Court will instead impose lesser, but nonetheless severe, sanctions.
The basic facts of this case are by now well-known to the Court. Between December 2010 and June 2011, Defense Intelligence Agency employee Lynn Johnson was deployed to Iraq and assigned to the Analysis & Production Unit in the Joint Intelligence Operations Threat Center on the Al Qaeda in Iraq team ("AQI Team"). See Defendant's Response to Plaintiff's Amended Statement of Material Facts in Dispute ("Def.'s Resp.") ¶ 1.2 (Dkt. No. 85). The AQI Team was under military command and tasked with supplying operational intelligence to aid in military operations. Id. at ¶ 1.9-11.With her on the team was Thomas Schiller, a BAE Systems employee working on a BAE contract with the DIA. Id. at ¶ 1.14. Mr. Schiller was tasked with training Ms. Johnson; this task included reviewing and editing her work. Id. at ¶ 1.19-20.
During the months they worked together, Mr. Schiller made several comments of a sexual nature to Ms. Johnson. These included comparing her physical attributes to those of his wife, telling her he was "so horny [he] could screw the crack of dawn, " and suggesting that Mr. Schiller and Ms. Johnson should pretend to be a couple. Id. at ¶ 2.10. On one occasion, he smacked or grabbed her buttocks while exiting the dining hall. Id. at ¶ 1.31-33. Ms. Johnson reported Mr. Schiller's behavior to senior military personnel during a conversation on February 13, 2011. Id. at ¶ 1.73. She filed formal charges with the Department of the Army shortly thereafter; the Army investigated and determined that Mr. Schiller had engaged in wrongful sexual conduct in violation of the U.S. Military Justice Act. Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("SJ Opp.") Exh. 60 (Dkt. No. 72). Other than in the context of litigation, Mr. Schiller and Ms. Johnson have had no contact since February 13, 2011. Plaintiff's Amended Statement of Material Facts in Dispute ("Pl.'s SOF") ¶ 1.111 (Dkt. No. 83).
On November 11, 2011, Ms. Johnson brought suit against BAE Systems, Inc., BAE Systems Information Solutions, Inc. (collectively "BAE" or "Defendants"), and Mr. Schiller in the Superior Court of the District of Columbia, asserting that Mr. Schiller's actions had caused her "severe physical and emotional health problems" and that she had been denied a promised promotion as a result of Mr. Schiller's efforts to retaliate against her for refusing his advances. Complaint at 8. Defendants removed to this Court and filed Motions to Dismiss. The Court dismissed the suit against Mr. Schiller for lack of personal jurisdiction and dismissed several of the claims against BAE. Four tort claims survived: (1) negligent supervision, (2) sexual battery, (3) intentional infliction of emotional distress, and (4) defamation. The case proceeded to discovery.
During discovery, BAE arranged for an expert witness to conduct a medical examination of Ms. Johnson in order to respond to her claims concerning her health problems. BAE requested medical records in preparation for this examination. Ms. Johnson provided BAE with falsified medical records which she had edited in an effort to eliminate references to health issues that predated her deployment to Iraq. This episode was the basis of a sanctions motion filed by BAE, seeking dismissal. This Court granted in part and denied in part BAE's motion, and sanctioned Ms. Johnson and her counsel with fees and an adverse inference instruction.
The events which precipitated the current sanctions motion occurred during the pendency of the previous sanctions motion. Over the summer and fall of 2013, BAE sought information about emails and other files on the computer Ms. Johnson used during her deployment. On September 25, 2013, BAE requested a forensic examination of Ms. Johnson's computer. Defendants' Second Motion for Sanctions ("Sanctions Mot.") Exh. J (Dkt. No. 63). That evening, Ms. Johnson contracted with a local computer technician who performed various maintenance functions, which included running a program called CCleaner that is capable of permanently deleting files. Id. at Exh. K; Plaintiff's Opposition to Defendants' Second Motion for Sanctions ("Sanctions Opp.") Exh. T (Dkt. No. 65). Subsequent forensic analysis showed that several Microsoft Outlook.pst email storage files were placed into the recycling bin and deleted on September 27. Sanctions Mot. Exh. K.
BAE filed this second sanctions motion and again seeks dismissal, citing the alleged deletion of computer files as well as other examples of what it portrays as a general pattern of dishonesty on Ms. Johnson's behalf during the discovery process as justification for the most severe sanctions available.
Shortly after filing the second sanctions motion, BAE filed a motion for summary judgment with an attached statement of material facts to which there is no genuine dispute. Defendants' Motion for Summary Judgment ("SJ Mot.") (Dkt. No. 68). Ms. Johnson responded in opposition with a "statement of material facts in dispute" that contravened the requirements of Local Rule 7(h)(1); rather than providing a "concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, " Ms. Johnson's document was a lengthy recitation with apparently no effort made to distinguish between material and immaterial facts or between facts in dispute and facts as to which there was no dispute. The Court ordered Ms. Johnson to provide an amended statement of material facts with strict limitations regarding content and form. Order on Motion for Summary Judgment (Dkt. No. 82).
After Ms. Johnson produced an amended statement of facts in dispute and BAE was given a chance to respond, the Court held a hearing to discuss outstanding motions, including those considered herein. The Court received testimony from Ms. Johnson, her computer forensics expert, and the technician with whom she contracted to work on her computer in September 2013. Having considered the testimony given at the hearing, as well as the parties' various filings, the Court is now prepared to decide Defendants' motions for sanctions and summary judgment.
II. LEGAL ANALYSIS
A. Defendants' Motion for Summary Judgment
As a threshold matter, the Court must determine whether Ms. Johnson's tort claims are preempted by the doctrine announced in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009). In Saleh, the Court of Appeals held that "[d]uring wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted." 580 F.3d at 9. Although the holding is broadly stated, Saleh acknowledged that "a service contractor might be supplying services in such a discrete manner-perhaps even in a battlefield context- that those services could be judged separate and apart from combat activities of the U.S. military." 580 F.3d at 9. The example provided by the Court is a situation in which the contract contains a "performance-based statement of work." Id. at 10. Therefore, analysis of whether the Saleh preemption applies requires consideration of the contract under which the services were rendered. BAE has refused to produce its contract with the DIA. Alerted to the possibility that this Court would not consider Saleh preemption in the absence of the contract, BAE determined that it would rather accept the Court's rejection of its Saleh argument than produce the contract. Transcript of Motions Hearing ("Transcript") at 197-98 (Dkt. No. 90). The Court thus considers the Saleh issue waived.
Ms. Johnson's remaining claims assert: (1) negligent supervision; (2) sexual battery; (3) intentional infliction of emotional distress; and (4) defamation. Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in h[er] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, the nonmoving party bears the burden of production under Rule 56 to designate specific facts showing that there is a genuine issue for trial." Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)) (internal quotation marks omitted). Under the standard as applied to this case, summary judgment is appropriate where Ms. Johnson has failed ...