United States District Court, D. Arizona
Metropolitan Life Insurance Company, a New York corporation, Plaintiff/Counter-Defendant,
Inna Ogandzhanova, M.D., Defendant/Counter-Claimant.
G. MURRAY SNOW, District Judge.
Pending before this Court is Plaintiff Metropolitan Life Insurance Company's ("Met Life") Motion for Sanctions for Dr. Ogandzhanova's Failure to Comply with Court Orders (Doc. 235). For the reasons stated below the motion is granted. The Court will issue a permissive adverse inference instruction at trial, and MetLife is awarded its reasonable fees and expenses incurred in bringing this motion.
On August 23, the Court held a status conference in this matter, a principal subject of which was Plaintiff's request to compel production from Dr. Ogandzhanova and re-open her deposition. Discovery in the action had otherwise long since been closed. Nevertheless, just prior to the end of discovery in April of 2013, Plaintiff satisfied the Court that Dr. Ogandzhanova's delayed responses to relevant discovery concerning her business and investment enterprises, and the then-recent discovery of Hotmail accounts containing relevant documents that she had not previously disclosed, justified that she turn over the computers she used during the relevant period to be subjected to a key word search by Plaintiff's expert, and further that Defendant turn over access to her email accounts and fully respond to previous discovery requests.
At the August conference Plaintiff moved again to re-open the deposition of Dr. Ogandzhanova. In addition to raising the incomplete responses to the earlier discovery orders of this Court, later-discovered information which appeared to be inconsistent with Dr. Ogandzhanova's earlier deposition testimony, and some newly asserted claims by Dr. Ogandzhanova about which Plaintiff avowed it had not been able to earlier inquire at her deposition, Plaintiff also asserted that the evidence clearly demonstrated that Dr. Ogandzhanova had not complied with the order of this Court that she turn over all the computers she used during the period relevant to this lawsuit. Further, Plaintiff alleged that, as to the hard drive of the desktop that she did provide, data had been deleted within the 24 hours prior to its surrender.
Dr. Ogandzhanova objected to the re-opening of her deposition, noting that it had been Plaintiff's choice to depose her prior to receiving all responses to written discovery that it had served on her and further asserting that the extensive discovery was detrimental to her fragile emotional condition. Accordingly, the Court determined that rather than re-open the deposition of Dr. Ogandzhanova, it would allow an additional period in which Plaintiff could make additional specifications and Dr. Ogandzhanova could supplement her responses to the Court's previous orders. If the Plaintiff remained dissatisfied with the probity and/or adequacy of Dr. Ogandzhanova's response after this period, it could move for sanctions, and the Court would resolve the matter in the context of a motion for sanctions. The Court set a deadline for Plaintiff to file such a motion, and it did so on October 10.
Plaintiff's expert, who had earlier filed a report concerning her word search of the two hard drives provided by Dr. Ogandzhanova, supplemented her report to include her analysis and conclusions that Dr. Ogandzhanova had, in derogation of the Court's Order, not supplied all the computers she used, and had deleted material from one of the computers provided. This supplement was filed as an attachment to Plaintiff's October 10 motion.
Pursuant to the stipulation of the parties, the Court set forth an additional schedule which specified the date by which Dr. Ogandzhanova's computer forensic expert would disclose its report to MetLife, (November 22), the date by which Dr. Ogandzhanova would be required to depose MetLife's expert (December 13), the date Dr. Ogandzhanova's response to the motion for sanctions would be due (December 30), and the date by which MetLife could depose Dr. Ogandzhanova's expert (January 15) and file its Reply (January 30). The motion is now completely briefed.
The Court set oral argument on the Motion for Sanctions for May 15, 2014. In so doing the Court notified the parties that it had fully read the briefing on the motion, the entire report and the entire supplement of both experts, and many of the excerpts of deposition of both of the forensic computer excerpts, Dr. Ogandzhanova and Mr. Bates, as well as the various supplemental affidavits of Mr. Bates and Dr. Ogandzhanova that have been attached to the motions. The Court set forth particular questions which it wished the parties to address, and further informed the parties that in light of the extensive discovery periods that it had provided the parties it would not allow the parties at oral argument to assert additional facts that were not presently in the record, nor would the Court entertain additional affidavits or expert reports. In answering the Court's questions the parties were advised that they were to cite to specific items in the record (e.g. deposition testimony, expert report, affidavit, discovery responses and their content, or otherwise), but that they could present argument based on identifiable facts in the record.
Plaintiff's Motion seeks sanctions including dismissal of Dr. Ogandzhanova's counterclaim for her: (1) failure to comply with the Court's order requiring her to avow that she had made available to Plaintiffs all of the computers that she actually used within the period relevant to this lawsuit; (2) failure to comply with the Court's order requiring her to provide to Plaintiffs all the computers she used during the period relevant to this lawsuit; (3) deletion of files from the desktop computer that she provided; and (4) the ongoing failure to provide documents, including privilege logs, required by the Court's April 24, 2013 order.
The Court has the responsibility to make factual findings in determining a motion for sanctions. Leon v. IDX Systems Corp., 464 F.3d 951, 957-58 (9th Cir. 2006) (citing Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995)); Anheuser-Busch, 69 F.3d at 348 (citing EEOC v. Bruno's Rest., 13 F.3d 285, 289 (9th Cir. 1993)). Accordingly, and for the following reasons, the Court makes the following factual determinations:
A. Dr. Ogandzhanova Did Not Produce Or Adequately Account For All of the Computers She Used Or Over Which She Had Control.
1. Affidavits Avowing to Computer Use
On May 22, 2013, Dr. Ogandzhanova provided the hard drives from two computers to Plaintiff's forensic expert, Tami Loehrs. One was a Dell Dimension 2350 Desktop computer purchased by Dr. Ogandzhanova in 2003, and the other was a Sylvania GNet 13001 Laptop computer. Doc. 227-1, ¶ 2. As it pertained to these computers at the August 23, 2013 status conference, MetLife informed the Court that Ms. Loehrs had concluded in her analysis that Dr. Ogandzhanova did not produce or identify to MetLife all the computers that she regularly used during the relevant time period as ordered by the Court.
The Court, among other things, entered a supplemental scheduling order that required Dr. Ogandzhanova, by September 6, 2013, to execute and file an affidavit indicating that she provided all computers that she used during the relevant period. In that affidavit, Dr. Ogandzhanova avowed that her Dell desktop and the Sylvania laptop were the only two computers that she owned, but she did not indicate that they were the only computers she used or over which she had control during the relevant period. She did state, however, that she used computers in internet cafes and hotel conference centers when traveling to access her email account and print off boarding passes.
In an e-mail to Dr. Ogandzhanova's counsel dated September 18, 2013, MetLife's counsel pointed out that Defendant did not avow in her affidavit that she had provided all computers under her control. When Plaintiff received no response from Defendant prior to October 10, this failure became a subject of MetLife's Motion for Sanctions.
In conjunction with filing her Response to the Motion for Sanctions, on December 30, Dr. Ogandzhanova filed another affidavit in which she testified that she only used the two computers whose hard drives she provided, as well as publicly available computers "such as those provided in hotels or internet cafes" that she had previously discussed. She also indicated, however, that prior to the sale of her radiology oncology clinic, which was apparently in March or April 2007, she may have used on occasion some of those computers, however, she no longer has access to them or control over them.
Dr. Ogandzhanova's original affidavit was insufficient to comply with this Court's order. Nevertheless in conjunction with her supplemental affidavit filed late, on December 30, and only after it was a subject of Plaintiff's motion for sanctions, it is sufficient to meet the requirements of the Court's August 23 order. Between the two affidavits, Dr. Ogandzhanova avows that except for when she was traveling, in which case she used internet cafes and hotel conference accounts to access her email and get boarding passes, she used no other computers after March/April 2007, other than those she surrendered to Plaintiff's expert.
With this specification, and in conjunction with the other evidence provided by MetLife's expert, the Court determines that Dr. Ogandzhanova neither provided a fair accounting of, nor did she disclose, the computers she used during the time period between 2007 and 2013.
2. The Lack of Computer Activity
There is little activity reflected on either of the computers provided by Dr. Ogandzhanova. Ms. Loehrs noted in her report that "[t]he forensic software tool Internet Evidence Finder (IEF) was run against the forensic images of [the desktop] and [the laptop] for all Internet artifacts in allocated and unallocated space. Over 13, 000 artifacts were recovered.... It should be noted that a computer examined with IEF that has been in use for many years and regularly accessed the Internet would typically result in the recovery of millions of artifacts." Doc. 235-2 at 26. Dr. Ogandzhanova's expert does not challenge these statements nor, for the most part, does Dr. Ogandzhanova.
With respect to the desktop computer, Ms. Loehrs noted in her first supplemental report filed with this Court on October 10, 2013, that "[t]here is virtually no activity to speak of on the [desktop] computer between 2007, when the current operating system was installed, and 2011 and then some sporadic activity occurs on a few occasions in 2012, followed by very minimal activity for a few months between February, 2013 and April 2013." Doc. 235-2 at 4. Dr. Ogandzhanova's expert did not challenge this assessment. In fact, under questioning from Dr. Ogandzhanova's counsel at his deposition, he testified: "[T]he level of activity I saw on the computer is pretty light. I'm, again, hesitant to quantify what's light, what's heavy. But on-on a broad scale, this would definitely fall on the light end, yeah." Doc. 305-2 at 31 (Cardwell Depo. p. 285). He further testified in response to questioning by MetLife's attorney that Dr. Ogandzhanova's use of the computer consisted of periods of inactivity, with "bumps" of activity that occurred in 2009, 2011, 2013 and one more "bump" whose date was not identified. He further testifies that such bumps may not even reflect user activity but may only reflect system activity. Id. at 13, 14 (Cardwell Depo. pps. 106-09, 118-21).
Dr. Ogandzhanova testified by affidavit that she did not frequently use the laptop computer while traveling because it was slow and made it difficult to access the internet. Doc. 227-1 ¶ 6. Seemingly consistent with that, the hard ...