Angela Lawrence (“Lawrence”) was a plaintiff in a civil rights action that alleged officers of the New York City Police Department (“NYPD”) entered her home in August 2014 without a warrant, pushed her to the ground, damaged her property, and stole $1,000 in cash. In September 2016, Lawrence provided photographs to her attorney (“Leventhal”) that she claimed depicted the condition of her apartment several days after the incident and which appeared consistent with Lawrence’s recitation of what transpired. Leventhal accepted his client’s representations and, after reviewing the photographs, saved them to a PDF, Bates-stamped them, and produced them to Defendants 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.” (Decl. of Jason L. Leventhal, Esq., in Opp. to Defs.’ Mot. For Sanctions & Attorneys’ Fees & Costs, ECF No. 123 (“Leventhal Decl.”) 15–16.)
During a December 2016 deposition, Lawrence testified that her son or a friend took the photographs two days after the incident. 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.
At that juncture, Leventhal believed his client had memory problems but did not believe she was testifying falsely. In view of Lawrence’s conflicting testimony, Defendants requested the smartphones which Lawrence claimed were used to take the photos. In August 2017, Leventhal objected, but agreed to produce the photographs’ native files, which included metadata. 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.
In September 2017, Defendants moved for sanctions against Lawrence and Leventhal. The Court granted in part, and denied in part Defendants’ motion. Specifically, the Court found Lawrence committed a fraud upon the Court, and dismissed her action. The Court, however, spared the attorney and held his failure to discover that his client had lied about when digital photos were taken in order to support her case against the NYPD was not sanctionable even though he could have uncovered his client’s fraud by checking the images’ metadata.
In reaching this conclusion Judge Pauley examined each of Rule 11, Rule 26, Rule 37 and the Court’s inherent powers to impose a sanction. While the decision itself (Lawrence v. City of New York, 2018 BL 267050, S.D.N.Y., No. 15cv8947, 7/27/18) provides a detailed analysis of each Rule and its applicability, for purposes of this blog, the Court concluded that none of the Rules provided a basis for imposing a sanction on Leventhal.
The Court, noting that beyond the powers conferred expressly by rule and statute, a federal court has inherent power to sanction a party for bad faith litigation conduct, determined that the creation of staged photos was the beginning of a sustained effort by Lawrence to mislead Defendants and this Court.* Ultimately, the Court concluded Lawrence’s willful and repeated conduct “requires that the policy favoring adjudication on the merits yield to the need to preserve the integrity of the courts” and dismissed her lawsuit. Lawrence, however, was spared any sanction.
This decision is an important reminder that we, as attorneys, must verify a client’s representation, especially involving evidence and discovery. We cannot accept blindly a client’s representation. Indeed, if an attorney is complicit in making a false or misleading statement to Court or an adversary, we are subject to sanctions and repercussions. In fact, Judge Pauley showed mercy to Leventhal that is not embraced by all Courts. See, e.g., Johnson v. BAE Sys., Inc., 307 F.R.D. 220, 226 (D.D.C. 2013) (sanctioning attorney for producing doctored medical records without any inspection or inquiry); Brown v. Tellermate Holdings Ltd., No. 2:11-CV-1122, 2014 WL 2987051 (S.D. Ohio July 1, 2014) (sanctioning attorney who relied on client representations that resulted in failure to uncover basic information about an ESI database, resulting in false or misleading statements to opposing counsel that hampered their ability to carry out discovery).
* It was only after Defendants discovered the metadata that Lawrence acknowledged that the photos were taken in 2016. Lawrence’s attempts to explain the photographs and her deposition testimony continue a pattern of evasion and untruths. First, she asserted the production was caused by conjunctivitis, and presented her prescription for eye drops. (ECF No. 105.) Only after the Court rejected that explanation did Lawrence contend that the production was due to mental illness. However, after providing that explanation, Lawrence submitted further documents in which she amended her deposition testimony and claimed that the photos were taken by her grandson as part of a school project. (ECF No. 132-1, at 76.) The Court noted that these shifting explanations were as troubling as the photographs themselves.