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Lawrence v. City of New York

United States District Court, S.D. New York

July 27, 2018

THE CITY OF NEW YORK, et al., Defendants.

          OPINION & ORDER


         The City of New York, Daniel Nunez, Daniel Beddows, Juan Rodriguez, Jens Maldonado, John Anzelino, and Michael Raso (together, “Defendants”) move for sanctions against Angela Lawrence and her former counsel Jason Leventhal stemming from their production of 67 photographs purporting to show the immediate aftermath of the events at issue in this action. Defendants contend that sanctions are warranted under Federal Rules of Civil Procedure 11, 26, and 37, and seek dismissal with prejudice and attorneys' fees. For the reasons that follow, Defendants' motion is granted in part and denied in part, and this case is dismissed.


         This Opinion & Order showcases the importance of verifying a client's representations. In November 2015, Leventhal filed this civil rights action on behalf of Lawrence. (See Compl., ECF No. 1.) The complaint alleged that in August 2014, NYPD officers entered Lawrence's home without a warrant, pushed her to the floor, damaged her property, and stole more than $1, 000 in cash. (Am. Compl., ECF No. 17, ¶¶ 17, 22.)

         In September 2016, Lawrence provided photographs that she claimed depicted the condition of her apartment several days after the incident. (Decl. of Jason L. Leventhal, Esq., in Opp. to Defs.' Mot. for Sanctions & Attorneys' Fees & Costs, ECF No. 123 (“Leventhal Decl.”) ¶¶ 15-16.) Leventhal accepted his client's representations and after reviewing the photographs, saved them to a PDF, Bates-stamped them, and produced them to Defendants. (Leventhal Decl. ¶ 17; Decl. of Evan F. Jaffe in Supp. of Defs.' Mot. for Sanctions & Attorneys' Fees, ECF No. 113 (“Jaffe Decl.”), Ex. F.). At that time, Leventhal was unfamiliar with electronically stored metadata and “did not doubt [that] the photographs were taken contemporaneously with the occurrence of the damage.” (Leventhal Decl. ¶ 15.)

         During a December 2016 deposition, Lawrence testified that her son or a friend took the photographs two days after the incident. (Jaffe Decl., Ex. H (“Dec. Dep.”), at 197:19- 198:18, 203:3:10, 204:14.) In a subsequent deposition in April 2017, Lawrence asserted that she had taken most of the pictures, that her son had taken a few, and that none of them were taken by the previously described friend. (Jaffe Decl., Ex. I (“Apr. Dep.”), at 265:5-11, 266:19-24, 273:12-14, 301:25-302:4, 306:10-14.) At that juncture, Leventhal believed his client had memory problems but did not believe she was testifying falsely. (Leventhal Decl. ¶ 21.) In view of Lawrence's conflicting testimony, Defendants requested the smartphones which Lawrence claimed were used to take the photos. (Jaffe Decl. ¶ 21.) In August 2017, Leventhal objected, but agreed to produce the photographs' native files, which included metadata. (Jaffe Decl. ¶ 29.)

         When Defendants checked the photographs' metadata, they learned that 67 of the 70 photographs had been taken in September 2016-two years after the incident and immediately before Lawrence provided them to Leventhal. (Jaffe Decl. ¶ 33.) In September 2017, Defendants sent a Rule 11 safe-harbor letter to Leventhal. (Jaffe Decl. ¶ 34; Ex. N.)

         In October 2017, Leventhal moved to withdraw as counsel, asserting that “based upon facts of which [he] was not aware . . . [he] hereby disavow[ed] all prior statements made [regarding] the photographs.” (See Aff. of Jason Leventhal, ECF No. 78-1, at 3.) At an October 2017 conference, Leventhal's ethics counsel represented that at the time of production, Leventhal “did not believe or have reason to believe that there was any question about the date or provenance of the photographs.” (Jaffe Decl., Ex. Q (“Oct. Hr'g Tr.”), at 3:23-25.) Ethics counsel also stated that other events now compelled Leventhal to withdraw. (Oct. Hr'g Tr., at 5:3-16.) While Leventhal's motion was pending, Lawrence terminated Leventhal's representation. (Letter, ECF No. 94.)

         In December 2017, this Court granted Leventhal's motion to withdraw and afforded Lawrence two months to secure new counsel. (ECF Nos. 97 & 98.) Lawrence was unable to engage a new lawyer and appeared pro se. By letter dated February 20, 2018, Lawrence claimed she provided the photographs to her attorney by accident because she had an eye infection. (ECF No. 105.) At a status conference, this Court advised Lawrence that “[t]he issue here is whether the photographs that you submitted actually depicted the damages at the time or whether it was all staged by you and then given to your attorney.” (Feb. Hr'g Tr., at 9:13-16.) Further, this Court informed Lawrence that “if evidence comes out on [Defendants'] motion that in fact this is all fabricated, at a minimum, [the Court] may be duty bound to refer it to the United States attorney, ” that her case could be dismissed, and that she “may be subject to substantial monetary penalties.” (Feb. Hr'g Tr., at 9:18-25.) Lawrence elected to proceed.

         In the wake of Defendants' motion for sanctions, Lawrence forwarded numerous documents to this Court and attributed her production of the photographs to mental illness. (See Opposing Mot. for Sanctions & Attorneys Fees, ECF No. 115 (“Lawrence Opp. Brief”), at *1.[1]) She also claims that her medications prevented her from testifying truthfully during depositions. (Lawrence Opp. Brief at *1.) Lawrence's medical records evince a history of mental illness. (See, e.g., Lawrence Supp. Brief, at *185 & Ex. 1, at *2, *16-17, *23.) Most recently, Lawrence amended her deposition testimony and now contends that the photographs were taken by her grandchild for a book report. (Lawrence's Amended Answers to Deposition, ECF No. 132-1, at *76.)


         The Federal Rules of Civil Procedure provide for sanctions based on litigation misconduct. Courts also “possess certain inherent powers, not conferred by rule or statute . . . to fashion an appropriate sanction for conduct which abuses the judicial process.” Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178, 1186 (2017) (citation and marks omitted). Courts have the inherent power to correct a fraud upon the court. Fraud upon the court exists where a litigant attempts to “improperly influence[] the trier” of fact, “lies to the court and h[er] adversary intentionally, repeatedly, and about issues that are central to the truth finding process, ” or “knowingly submit[s] fraudulent documents to the Court.” Passlogix, Inc. v. 2FA Tech., Inc., 708 F.Supp.2d 378, 395 (S.D.N.Y. 2010) (citation and marks omitted). A district court has broad discretion in fashioning sanctions under its “inherent power to manage its own affairs.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002).

         Discovery sanctions serve broad purposes, including: (1) to ensure “that a party will not benefit from its own failure to comply”; (2) “as specific deterrents [to] seek compliance with the particular order issued”; and (3) “as a general deterrent effect on the case at hand and on other litigation.” Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988). In determining sanctions based on discovery misconduct, courts consider willfulness, duration of non-compliance, whether the non-compliant party had been warned of the consequences of non-compliance, and the efficacy of lesser sanctions. Dragon Yu Bag Mfg. Co. v. Brand Sci., LLC, 282 F.R.D. 343, 345 (S.D.N.Y. 2012).

         “[D]ismissal is a harsh remedy, not to be utilized without a careful weighing of its appropriateness, ” and should only be employed when a court is “sure of the impotence of lesser sanctions.” Dodson v. Runyon, 86 F.3d 37, 39, 42 (2d Cir. 1996) (citation and marks omitted). Nonetheless, “when a party lies to the court and h[er] adversary intentionally, repeatedly, and about issues that are central to the truth-finding process, it can fairly be said that [s]he has forfeited h[er] right to have h[er] claim decided on the merits.” McMunn v. Mem'l Sloan-Kettering Cancer Ctr., 191 F.Supp.2d 440, 445 (S.D.N.Y. 2002).


         I. Rule 11

         Rule 11 states that by signing a pleading, motion, or other paper, an attorney certifies that “to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, ” the document is submitted for a proper purpose, the legal claims are nonfrivolous, and “the factual contentions have evidentiary support.” Fed.R.Civ.P. 11(b). “Rule 11 imposes a duty on every attorney to conduct a reasonable pre-filing inquiry into the evidentiary and factual support for [a] claim . . . .” Capital Bridge Co. v. IVL Tech., Ltd., 2007 WL 3168327, at *10 ...

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