When can courts impose harsh sanctions on a party to a litigation?

What Should A Party Do If Her Adversary Has Tampered With Evidence? Calling Out Shady Practices Via A Motion For Sanctions

Author: Maria A. Grajales
Case Citation: GoPro, Inc. v. 360Heros, Inc., No. 16-cv-01944-SI (N.D. Cal. March 30, 2018)
Employee/Personnel/Employer Implicated: CEO
eLesson Learned: Mr. Kintner, CEO of 360 Heros, Inc. should have refrained from making any alterations to the original conversation between himself and Mr. Jenny and should have preserved the original conversation in its native form to avoid any suspicion of evidence tampering.
Tweet This: Shady practices lead to serious sanctions, reminding us that honesty is the best policy.

There are few violations that interfere with the courts’ truth-seeking function as much as tampering or forging evidence. The practice of tampering with and forging evidence serve as an impediment to a fair and honest resolution of legal disputes. When a court finds that a party has engaged in this improper conduct, it can impose severe sanctions. Thus, as the old adage goes: “honesty is the best policy.”  

Parties to lawsuits oftentimes make mistakes – some graver than others. Arguably two of the gravest mistakes a party can make are forging evidence and failing to preserve evidence in its native form. This is precisely what happened in GoPro, Inc. v. 360Heros, Inc. In GoPro, Inc. v. 360Heros, plaintiff, GoPro, Inc. sued defendant, 360Heros, Inc., namely claiming trademark infringement. In addition to a motion for summary judgment, plaintiff filed a motion in limine and a motion for partial terminating sanctions. Of interest here is the motion for partial terminating sanctions. Plaintiffs claimed that defendants forged evidence regarding the “parties’ dispute over plaintiff’s ABYSS mark.” Specifically, plaintiff claimed that two emails produced by defendant “containing the transcript of two 2014 Skype conversations . . .” had been forged. Mr. Kintner, CEO of 360 Heros, Inc., denied these allegations.

When asked to produce the original Skype conversation in its native form, Mr. Kintner maintained that the conversation “is no longer available to him.” In response, plaintiff investigated further and “accessed equipment containing Mr. Jenny’s end of the Skype conversation with Mr. Kintner.” These records did not include references to “abyss.” Plaintiff then hired an expert, BlackStone Discovery, to conduct a forensic analysis and determine whether the Skype conversation contained the two lines referencing “abyss.” Using Access Data FTK, “a forensic imaging tool,” Blackstone Discovery concluded that Mr. Jenny’s “imaged Skype database did not contain the two highlighted lines referencing abyss.” The court determined that defendant “deliberately altered in an effort to strengthen its legal position with respect the ABYSS mark.” While acknowledging that sanctions can be a harsh penalty, the court determined that in this case they were warranted. The court determined that the appropriate sanctions was for the court to provide “an adverse inference instruction at trial . . . and reimbursement to GoPro of the costs incurred in retaining [the expert].”   

In GoPro, Inc. v. 360Heros, Inc, Mr. Kintner took one too many steps towards the wrong direction and it cost him big time. His first misstep was in allegedly failing to preserve the Skype conversation in native format. Had Mr. Kinder preserved the document in native format, he could have dispelled any suspicion of impropriety. However, plaintiff’s subsequent investigation suggests not that Mr. Kintner failed to preserve the conversation in its native format, but that he simply found it unfavorable to produce it. This leads us to Mr. Kintner’s second mistake, which was in altering and thereby forging the subject Skype conversation. By adding “ABYSS” to the conversation where they did not exist previously, defendant committed a fraud upon the judicial system and plaintiffs.

The rules of evidence require that all documents sought to be introduced into evidence must be a true and correct copy of the original. Therefore, by providing plaintiffs and the court a document that was not a true and correct copy of the original, but rather a forged version, defendant engaged in impermissible conduct.

The temptation to cheat or to otherwise seek an improper advantage over one’s adversary may be particularly strong in high-stake cases and cases where the odds seemed stacked against us. However, we must heed not to the voice of temptation, but to the voice of reason. We should get into the practice of preserving important documents in their native format. And, most importantly, we should abstain entirely from altering documents that are to be introduced into evidence. Otherwise, we may face the wrath of the court and the sanctions that flow from it.

Maria is a third-year law student at Seton Hall University School of Law and is expected to graduate in January 2020. She earned a B.A. in Political Science from Montclair State University in 2015. Maria is interested in the area of complex litigation.

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