Plaintiff Has to Pay for Facebook Discovery Acts

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     (CN) – A man who says he fell off a balcony during an engagement party will face sanctions because he, his family and counsel violated discovery procedure by concealing witness statements solicited through Facebook, a Philadelphia federal judge ruled.



     Yogesh Patel filed suit after allegedly tumbling over a railing at Havana Bar, Restaurant and Catering during a September 2007engagement party.
     The original complaint blamed Patel’s fall on negligently dangerous conditions and said Havana had failed to maintain the premises or warn patrons.
     As the case went to discovery in 2008, Patel’s sister-in-law, Sruti Patel, sent “a Facebook message to persons who attended the engagement part at Havana asking that the guest compose a statement recounting their recollection of the incident that night and generally describing plaintiff,” according to the court. “In this message, Sruti Patel challenged the accuracy of the police report in that it described plaintiff as being intoxicated. The message implied, if not directly requested, that the statements confirm that Plaintiff was not intoxicated.”
     In August 2010, Sruti Patel sent a different message to potential witnesses on Facebook. “Contrary to the request made in her September 2008 message which sought descriptions that plaintiff was not drunk, Sruti Patel made a new request of persons who may have witnessed the events on that night in question,” U.S. District Judge Mitchell Goldberg wrote. “This message stated: ‘There is one slight change in direction in terms of how the lawyer is approaching the case. We are now trying to collect statements that would indicate that Yog had too much to drink in order to shed some light on the fact that the bartender recklessly continued to serve him drinks despite the fact that he was visibly intoxicated. All statements that accuse him of jumping will not be included in this collection of statements because that claim is edging on the side of being outlandish so if that’s what you think happened please don’t send your statements along. In your statements please include any info you have in terms of what time we reached the club … [and] how much Yog had to drink.”
     “At this point there’s about 5 statements collected by the police that night that claim Yog jumped and the lawyer stressed the importance of us collecting at least 10-12 statements from our friends that say he DID NOT jump, but he FELL OVER the railing,” Sruti Patel continued (emphasis in original). “If you still have the statements that you emailed to me almost a year or two ago please edit according to the new direction we’re going in and re-send those if you can.”
     Despite the mention of witness and police reports, Patel’s team never provided these statements to Havana during initial disclosures. The Facebook messages came to light only while Havana’s lawyers were interviewing a witness in deposition.
     As Patel’s lawyers “provided the remainder of witness statements piecemeal, and only immediately prior to each witness’s deposition,” Havana asked the court to intervene. At that point, the judge ordered Patel’s lawyers to turn over all witness statements in their possession. But Havana says it has received just 16 of 20 existing statements.
     “It is undisputed that to date, plaintiff has never produced any statements received in response to Sruti Patel’s 2008 Facebook request for statements indicating that plaintiff was not intoxicated,” Goldberg explained.
     Yogesh Patel, his family and his attorneys gave conflicting testimony about possession of the 2008 statements, claiming generally that they cannot locate them.
     Patel’s lawyers meanwhile caught the court’s ire by failing to give the complete police report file to Havana.
     “Plaintiff’s counsel eventually produced the police report on November 4, 2010, more than two months after the initial disclosure period,” Goldberg wrote. “However, the version produced by plaintiff’s counsel was incomplete, as it omitted two appended witness statements – both of which cast doubt on plaintiff’s theory that he fell, rather than jumped, over the balcony. Also omitted was a copy of plaintiff’s guest check from the second floor bar on the night of the incident.”
     Though Havana said these omissions warranted dismissal, Goldberg declined to go so far.
     “We agree with defendant that the conduct of plaintiff, plaintiff’s family and his counsel ran completely afoul of the goals of discovery, and thus we have seriously considered dismissal of plaintiff’s case,” the judge wrote. “We are, however, unprepared to take such a drastic step and to deprive plaintiff of his day in court on the merits, especially where alternative sanctions will sufficiently address the misconduct.”
     Goldberg also had harsh words for Havana, which was found to have spoiled video evidence. Though the restaurant manager had video surveillance of the night in question, that evidence was recorded over and erased by the computer’s scheduled maintenance.
     “We find that defendants’ failure to preserve the video surveillance footage constitutes spoliation,” Goldberg wrote. “Defendants had an affirmative duty to preserve the video evidence.”
     Though the judge ordered an “adverse inference instruction” to level the playing field as to this missing evidence, he declined to impose further sanctions since the discrepancy represents “the only sanctionable conduct on the part of the defendant.”
     Patel, on the other hand, must pay Havana’s lawyers about $20,000 to compensate them for the botched discovery. If Havana wants to pursue additional discovery related to the statements that Sruti Patel is alleged to have received, it must do so at its own expense, according to the court.
     Patel is represented by Barry Eichen with Eichen, Crutchlow, Zaslow & McElroy in Edison, N.J.