Plaintiff’s Intentional and Bad Faith Discovery Misconduct Warrants Dismissal of Complaint

Covucci v. Keane Consulting Group, Inc., 2006 WL 2004215 (Mass. Super. Ct. May 31, 2006)

In this age discrimination case, defendants moved to dismiss the complaint as a sanction for the intentional spoliation of material evidence by plaintiff Covucci. After conducting a hearing and taking testimony from Covucci, the court found that defendants had proved by clear and convincing evidence that plaintiff intentionally and in bad faith engaged in a pattern of conduct that encompassed the destruction of evidence relating to the creation of an email that was the central document in the case, provided false and misleading testimony at his deposition and at the evidentiary hearing, and that his conduct was calculated to interfere with the judicial system’s ability impartially to adjudicate the case. The court further found that the plaintiff’s misconduct had prejudiced the defendants in their ability to defend against these claims and that dismissal of the complaint was warranted.

Specifically, the court found that Covucci had attempted to conceal the existence of a computer that was the subject of a discovery request until he had eliminated the possibility that any relevant evidence concerning the creation of the email that he relied on and described as "crucial" to his case could be retrieved from the hard drive. Among other things, Covucci:

• Caused his attorneys to falsely represent that he no longer had his personal laptop computer (which contained information concerning the creation of a document which both parties agreed was the "crucial" document in the case) and could not produce it
• Investigated the kinds of information about the creation of a deleted document that can be discovered by a forensic examination of the hard drive of a computer. After learning that electronic information concerning the creation of the document and the document itself could be retrieved even if the document had been deleted, Covucci investigated products that could be used to delete such information from the hard drive.
• After downloading such a product onto his personal laptop, he used it to clean the open spaces on the hard drive and to delete information relating to several documents from a folder that contained documents relating to his employment at Keane.
• After learning that AOL had not preserved his e-mails, he again lied to his attorneys telling them that he might be able to find the laptop and would search for it.
• He then communicated with AOL by telephone and e-mail to find out how to open the personal filing cabinet on the computer to determine whether his October 21 e-mail to himself was in the folder. After opening the PFC folder, he used BC Wipe again on January 31, 2004.
• He did not acknowledge that he still had the computer until he was deposed in September 2004.

The court stated it had considered the range of available sanctions and determined that dismissal was the only appropriate sanction given Covucci’s bad faith and the egregious nature of his misconduct. It elaborated:

This case does not involve a single hasty act. Covucci lied to his attorneys and caused them to make false representations to defendants. He then engaged in the systematic destruction of material evidence over a period of months. He has deprived the defendants of evidence concerning the creation of the "crucial" document in the case. He provided false testimony at his deposition and at the hearing on this motion.

The court stated that, whether such conduct was described as “a persistent bad-faith repudiation of discovery obligations,” or the “intentional spoliation of evidence,” or a “fraud on the court,” all three descriptions applied to Covucci’s conduct and dismissal was the only appropriate remedy.