Pable v. Chi. Transit Auth.

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Christopher Pable, Plaintiff, v. Chicago Transit Authority, et al., Defendants

No. 19 CV 7868

United States District Court, N.D. Illinois, Eastern Division

March 2, 2023

Maldonado, District Judge

MEMORANDUM OPINION AND ORDER AND REPORT AND RECOMMENDATION

HEATHER K. McSHAIN, UNITED STATES MAGISTRATE JUDGE

Pending before the Court are (1) defendant Chicago Transit Authority's (CTA) motion for sanctions under Fed.R.Civ.P 37(e) against plaintiff Christopher Pable and his attorney Timothy Duffy for spoliation of electronically stored information (ESI) [129];^[1] (2) CTA's motion to take discovery respecting Pable's affidavit and Duffy's “certified statement,” both of which were filed in opposition to CTA's motion [143]; (3) CTA's motion for sanctions under 28 U.S.C. § 1927 and the Court's inherent authority against Duffy and Quest Consultants International, the vendor that analyzed Pable's cell phone, for their alleged misconduct respecting the forensic imaging of Pable's cell phone [91]; and (4) CTA's request for attorney's fees and costs under Fed.R.Civ.P 37(a)(5) in connection with its successful motion to compel Pable to produce his cell phone for a second forensic imaging. These matters are fully briefed. See [139, 153] (briefing on spoliation motion); [145] (opposition to request for additional discovery); [95, 96, 105, 108] (briefing on sanctions motion against Duffy and Quest); [57, 58] (briefing on CTA's request for fees and costs).

The CTA's Rule 37(e) motion arises out of Pable's undisputed failure to preserve messages he exchanged on the Signal messaging application with Michael Haynes, Pable's friend, his former supervisor at the CTA, and a key witness to-and participant in-the events underlying Pable's suit against the CTA. The Rule 37(e) motion, as well as the CTA's separate motion for sanctions under § 1927 and the Court's inherent authority, also involve Pable's undisputed failure to produce a complete forensic image of the cell phone that Pable used at all relevant times and Duffy's representation to the CTA that he had secured “a complete image of the data on the phone when the phone was imaged.” These matters have been the subject of extensive litigation between the parties, and the undersigned has already issued three orders that bear on the issues raised by the CTA's two pending sanctions motions. See [54] (Apr. 2, 2021 order granting CTA's motion to compel second forensic imaging of Pable's cell phone); [85] (Sept. 13, 2021 order granting CTA's motion to extend fact discovery and serve discovery on Quest); [97] (Feb. 7, 2022 order granting in part and denying in part CTA's motion to enforce subpoena served on Quest). In its Rule 37(e) motion, the CTA asks that the Court either dismiss Pable's claim, enter a default judgment against him, or issue a mandatory adverse-inference instruction respecting the spoliated evidence. The sanctions motion under § 1927 and the Court's inherent authority asks that Duffy and/or Quest be sanctioned for unreasonably and vexatiously multiplying the proceedings related to the imaging of Pable's cell phone.

Having considered the evidence and arguments presented by the parties, the undersigned first concludes that the CTA's Rule 37(e) motion and its separate sanctions motion are dispositive matters that require the undersigned to prepare a Report and Recommendation for the District Judge in accordance with 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b)(1).

Second, the undersigned respectfully recommends that the District Judge grant CTA's Rule 37(e) motion and dismiss Pable's complaint with prejudice as a sanction for his intentional spoliation of the Signal messages and his cell phone. To begin, Pable intentionally deleted the Signal messages that he exchanged with Haynes before November 2, 2018 and lied about the spoliation-twice, under oath-in an effort to cover his tracks. These messages were very likely to contain contemporaneous communications between Pable and Haynes about the events that led to their forced resignations from the CTA and on which Pable's whistleblower lawsuit is based. The content of these messages has not been replicated by other evidence developed in discovery, and Pable's spoliation has effectively kneecapped the CTA's ability to establish that, far from being the wrongly discharged whistleblower he claims to be, Pable was a bad actor who was forced to resign for violating CTA's policies and procedures by hacking into a CTA program. What's more, Pable intentionally spoliated a second batch of Signal messages that he exchanged with Haynes over a seventeen-month period while this litigation was pending. The record establishes that, on October 29, 2019, Pable-a highly sophisticated computer programmer-activated a feature on his Signal messaging app that automatically and permanently deleted his messages with Haynes twenty-four hours after they were sent. Pable continued to communicate with Haynes-a critical witness in this case, and perhaps the most important witness for Pable's case and likely also the CTA's defense-through March 2021, shortly before Haynes was deposed. Although Pable maintains that these messages were infrequent and innocuous, Haynes testified that the messages regularly touched on topics relevant to the litigation itself. As was true of his deletion of the pre-November 2, 2018 Signal messages, Pable's spoliation of the post-October 29, 2019 messages “deprived” the CTA “of the opportunity to know the precise nature and frequency of [their] private communications, which occurred during” several “critical time period[s].” Schmalz v. Vill. of N. Riverside, No. 13 C 8012, 2018 WL 1704109, at *4 (N.D. Ill. Mar. 23, 2018) (internal quotation marks omitted). Finally, Pable and Duffy intentionally spoliated Pable's cell phone by failing to preserve the communications and other data that existed on the phone as of October 29, 2018, when Pable's duty to preserve relevant ESI arose. Despite agreeing to the CTA's request to preserve the phone, Duffy falsely represented that he obtained “a complete forensic image of the phone” and that this image was “a complete image of the data on the phone when the phone was imaged.” A later forensic examination of this “complete image” revealed that it contained only 0.2 gigabytes (GB) of user-created data, including only five SMS text messages that were exchanged in May 2020, no internet browser or search histories, and no data associated with 151 of the 200 third-party apps that were installed on the phone. The spoliation of the phone not only ensured that the Signal messages could not be recovered; it also deprived the CTA of objective evidence-the phone itself and all of its data-that could have refuted Pable's various claims about how he used the Signal app, when the pre-November 2, 2018 Signal messages had been deleted, and how the messages had been erased. Given Pable's repeated and intentional spoliation of evidence, his lies about what happened to the Signal messages he exchanged with Haynes before November 2, 2018, and Duffy's misrepresentations about the first image of Pable's phone, the undersigned concludes that this is the rare case in which the sanction of dismissal is warranted under Rule 37(e)(2)(C). Finally, because Pable's and Duffy's spoliation of this ESI also prejudiced the CTA by forcing the CTA to litigate unnecessary discovery disputes, the undersigned further recommends that the District Judge require, as a curative measure under Rule 37(e)(1), Pable and/or Duffy to pay the reasonable attorney's fees and costs that the CTA incurred in bringing this motion.

Third, the undersigned respectfully recommends that the District Judge grant in part and deny in part the CTA's motion for sanctions pursuant to 28 U.S.C. § 1927 and the Court's inherent authority against Duffy and Quest. The motion should be granted to the extent that it seeks to impose financial sanctions against Duffy under § 1927. Duffy falsely represented to the CTA in October 2020, and later to the Court, that Quest, Pable's ESI vendor, had generated a complete forensic image of all data that existed on Pable's cell phone when the phone was imaged. This representation was false, and Duffy knew it was false: the Quest analyst who processed Pable's phone testified that he did not generate a complete forensic image of the phone because Duffy never asked him to do so. Duffy's misrepresentation kicked off a series of hard-fought discovery battles that lasted well into 2022, as the CTA reasonably and foreseeably sought to understand why, if a complete image of Pable's phone had been produced, that image contained suspiciously little data-and essentially none of the information that is ordinarily found in a forensic image of a cell phone. By making this misrepresentation, by failing to correct it, and by opposing the CTA's reasonable efforts to probe the circumstances surrounding the first image and discover whether the data on the phone had been preserved, Duffy unreasonably and vexatiously multiplied the proceedings in this case. The undersigned therefore recommends that Duffy should be required to pay $53,388.00 in attorney's fees and costs that the CTA incurred in response to his conduct. However, the motion should be denied to the extent that the CTA asks the Court to invoke its inherent authority and to sanction Quest, which has not engaged in any bad-faith or abusive litigation conduct.

Third, the undersigned denies the CTA's motion to take additional discovery respecting Pable's affidavit and to strike Duffy's certified statement.

Finally the undersigned grants CTA's request for attorney's fees and costs under Rule 37(a)(5) in connection with its successful motion to compel a second forensic imaging of...