Case: 22-20440 Document: 00516927287 Page: 1 Date Filed: 10/11/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
October 11, 2023
No. 22-20440 Lyle W. Cayce
____________ Clerk
Calsep A/S; Calsep, Incorporated,
Plaintiffs—Appellees,
versus
Ashish Dabral,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1118
______________________________
Before Clement, Elrod, and Willett, Circuit Judges.
Edith Brown Clement:
One company, alleging that another company stole the code for its
software product, filed a lawsuit. During discovery, the alleged thief
destroyed electronic evidence. That was a violation of several court orders
and the Federal Rules of Civil Procedure. So, the district court sanctioned
the spoliator by entering a default judgment and a damages award.
Considering the record and the law, we AFFIRM.
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I.
Seven years ago, Ashish Dabral was hired to create a PVT (“pressure
volume temperature”) simulation software program. PVT programs are used
by oil and gas companies to—through data-driven simulations of fluid
behaviors—assess the efficiency of both existing and potential oil wells.
Because creating such a product requires expertise in chemical engineering,
fluid dynamics, and computer programming, there’s only a handful of
companies that sell it worldwide. So, it wasn’t going to be easy for Dabral and
his company, Insights Reservoir Consulting, LLC (IRC), to make a PVT
product from scratch. 1
Enter Pashupati Sah. Six years ago, Sah was “one of the highest
ranking employees” at a Danish company called Calsep A/S. Calsep, a
“leading provider[]” of PVT software globally, sells a product called
“PVTsim.” Apparently dissatisfied with his job after nearly a decade at
Calsep, Sah decided to quit. Post-resignation, Sah was hired by Dabral, his
old college friend, to develop a PVT software program in exchange for a stake
in one of Dabral’s companies, IPSS. Eight months later, a product called
InPVT hit the market.
Surprised by a product that was “functionally identical” to PVTsim,
Calsep started looking into InPVT. In Calsep’s assessment, Dabral didn’t
have the technical skill or resources to develop a PVT product. But, as it soon
discovered, Sah now worked for Dabral. After some digging, Calsep allegedly
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1
Note that there are a couple other companies tied to Dabral. For example,
although Dabral creates and markets software products, he doesn’t have the “coding
expertise” to generate a “full-scale software program.” So, he hires Bright Petroleum
Software Solutions (BPSS)—an Indian software programming company—to “write[] the
underlying [] code” for his products. Also, he has a second company, Intelligent Petroleum
Software Solutions, LLC (IPSS), that “licens[es] software developed by IRC to the oil and
gas industry.”
2
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found that Sah “copied hundreds of files containing Calsep’s trade secrets to
three external storage devices” (i.e., USBs) before quitting. Per Calsep, those
USBs contained a host of proprietary information, including the “source
code repository” for PVTsim. Source code is the text that, written in a
“programming language,” “make[s] up a computer program.” It “instructs
a computer system how to operate” a particular program and, therefore, is
the “most critical” part of any software product. Calsep contends that, with
that “stolen” source code alone, Dabral and Sah created InPVT. So, in
March of 2019, Calsep sued Sah, Dabral, and Dabral’s various companies for
misappropriation of trade secrets in violation of state and federal law. 2
From the outset, discovery was contentious. But, in June of 2019, it
escalated. That month, Calsep served a production request upon Dabral for
(among other things) any “information related to the development” of
InPVT. In particular, Calsep wanted a copy of Dabral’s “complete source
code control system.” A source code control system is a “mechanism [that]
track[s] changes and updates to the source code” of a given product. In other
words, it records “the development of a software program.” 3 Here, Dabral’s
source code control system would “contain[] the development history of all
software” related to InPVT. With that, Calsep planned to analyze InPVT’s
source code to determine if data from PVTsim was used in its development.
In response, Dabral argued that such a request was overbroad, irrelevant, and
risked exposing his companies’ own unrelated trade secrets. He emphasized
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2
Exit Sah. After unsuccessfully contesting personal jurisdiction, Sah stopped
participating in this case.
3
Such a system is made up of three key components: “‘projects,’ which . . . contain
the source code itself and other files related to its development,” “‘collections,’ which are
databases of projects,” and “‘change sets,’ which are unique files that document each
revision to the source code and the nature of the change.”
3
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that his source code control system stores confidential data for innumerable
products and software that have nothing to do with InPVT.
Calsep moved to compel the disclosure, arguing that Dabral was
“stonewalling” its “narrow[]” but “fundamental” request. To resolve the
matter, in October of 2019, the magistrate judge instructed the parties to
negotiate both a protective order (i.e., for Dabral’s unrelated source code)
and the proper “scope” of discovery productions. In February of 2020, the
parties proffered an agreed-upon protective order, and the magistrate judge
entered it. The order (1) identified any produced source code as “extremely
sensitive” and limited its exposure, and (2) required the production of it in
its “unmodified” form.
That wasn’t the only spat, though. Meanwhile, in December of 2019,
Calsep sought a copy of the materials that Dabral gave to its expert witness,
Paul Price. Specifically, Price received a forensic report that apparently
“contained significant information” about a review of Dabral’s source code
system “early in the litigation.” Per Calsep, that report would speak to
whether Sah uploaded any of Calsep’s data onto the system or used it to
develop InPVT. Also in December, Calsep filed a motion to compel IPSS to
produce any items held by Sah, a part owner, including any “hard drives”
(e.g., the USBs). The magistrate judge granted both motions in February of
2020. She entered an order compelling Dabral “to produce a copy of
everything given to their expert . . . for the formation of his opinion,”
including the report. And she later found that there was “a sufficient
relationship between Sah and IPSS” to conclude IPSS had the hard drives,
so the court ordered that they be turned over.
Relatedly, in March of 2020, the parties filed an agreed upon
preliminary injunction that would control the parties’ conduct during
litigation. It enjoined Dabral from using the PVT software and prohibited the
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“destr[uction] [of] any potentially relevant evidence, including electronically
stored information.” The lower court entered the order.
Cut to August of 2020. Calsep filed another motion to compel,
alleging that Dabral still hadn’t adequately disclosed his source code control
system. Although Dabral had “produced [a] purported source code system”
in April and July, Calsep claimed that these productions were “undoubtedly
incomplete” and “had been manipulated.” Both times the control system
had “the same ‘integrity’ issues”—it was missing “folders” and didn’t
appear to be “complete” or “accurate.” After a hearing on the motion, the
magistrate judge ordered Dabral to “comply with the discovery requests” by
September of 2020. Specifically, the court instructed Dabral’s counsel that
his client had one more “chance to come clean” and “comply voluntarily
with his discovery obligations before [having to] respond to [a] motion for
sanctions.” So, in September, Dabral represented that he had “produced the
entire” source code control system “with the exception of files deleted in the
regular course of business long before this lawsuit.”
But, according to Calsep, Dabral’s representations were false. Calsep
claimed that Dabral “deliberately made multiple deletions from [his]
servers” during the litigation, including permanently deleting thirty-nine
entries in the source code control system. Eleven of those deletions,
according to Calsep, came after the magistrate judge’s August order.
Additionally, hundreds of thousands of records in Dabral’s database had been
deleted a few days before his prior productions. Believing the deletions to be
intentional, Calsep filed a motion for sanctions.
At an evidentiary hearing, Dabral didn’t contest that the deletions
happened, but instead insisted that they didn’t prejudice Calsep and weren’t
intentional. The court wasn’t convinced and found that Dabral (1) filed false
affidavits with the court, (2) purposefully delayed discovery, (3) manipulated
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data, and (4) deleted electronic evidence from the source code control
system. So, the magistrate judge recommended that the district court enter a
default judgment against Dabral and award damages plus fees to Calsep. The
district court adopted the report and recommendation in its entirety.
Afterwards, Dabral filed a motion for reconsideration based on newly
discovered forensic images that “vindicated” him. The magistrate judge
recommended denying the motion and the district court agreed, denying the
motion for reconsideration of the sanctions order. Dabral appeals.
II.
We begin with sanctions. Generally, sanctions are reviewed for abuse
of discretion. Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015); Law
Funder, L.L.C. v. Munoz,
924 F.3d 753, 758 (5th Cir. 2019). Additionally, we
review the “factual findings underpinning [a] sanction order for clear error.”
Law Funder,
924 F.3d at 758. The district court identified three vehicles for
imposing the sanctions at issue in this case: Federal Rule of Civil Procedure
37(b), Federal Rule of Civil Procedure 37(e), and the court’s inherent
powers. We address each basis in turn.
First, parties must comply with court orders. Fed. R. Civ. P.
37(b)(2)(A). Failure to do so means a court may sanction a party, including
by “dismissing the action” or “rendering a default judgment.” Id. When a
party “fails to comply with a discovery order,” a court has “broad discretion
in fashioning its sanction.” Law Funder,
924 F.3d at 758. Second, parties have
an obligation to preserve, through “reasonable steps,” electronic evidence
for trial. Fed. R. Civ. P. 37(e). Failure to do so is, again, sanctionable by
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“dismiss[al]” or “default judgment.” Id. 4 Before doing so, though, a court
must first find that (1) the troublemaker “acted with the intent to deprive
[the other] party of the information’s use,” (2) there was “prejudice to [the
other] party from loss of the information,” and (3) the sanction is “no greater
than necessary to cure the prejudice.”
Id. Finally, federal courts may, for a
number of reasons, invoke their “inherent power” to control and regulate
the cases before them. See Nat. Gas Pipeline Co. of Am. v. Energy Gathering,
Inc.,
2 F.3d 1397, 1406–08 (5th Cir. 1993). That includes issuing “reasonable
and appropriate” sanctions if a party is acting in “bad faith.” Timms v. LZM,
L.L.C.,
657 F. App’x 228, 230–31 (5th Cir. 2016) (per curiam) (citations and
quotation marks omitted); Vikas WSP, Ltd. v. Econ. Mud Prods. Co.,
23 F.4th
442, 455 (5th Cir. 2022). Still, such a power is to be “interpreted narrowly”
and used cautiously, Newby v. Enron Corp.,
302 F.3d 295, 302 (5th Cir. 2002)
(citation omitted), especially when a statute or rule is at play, Chambers v.
NASCO, Inc.,
501 U.S. 32, 50 (1991) (“[W]hen there is bad-faith conduct in
the course of litigation that could be adequately sanctioned under the Rules,
the court ordinarily should rely on the Rules rather than the inherent
power.”). Accordingly, we limit our analysis to Rule 37, not the court’s
inherent powers. See
id.
Our “caselaw imposes a heighted standard” for entering “litigation-ending sanctions” under the Federal Rules of Civil Procedure. Law Funder,
924 F.3d at 758. 5 Before a court ends a case through Rule 37 sanctions, it
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4
Relatedly, if a party “destr[oys]” or “meaningfully alter[s] evidence,” otherwise
known as “spoliation,” a court may sanction them. Guzman, 804 F.3d at 713 (citation and
quotation marks omitted).
5
That’s not to say, though, that they’re never warranted. In fact, “courts have
consistently demonstrated their willingness to impose the ultimate sanction of dismissal or
default.” Moore v. CITGO Refin. & Chem. Co., 735 F.3d 309, 315 (5th Cir. 2013) (citation
and quotation marks omitted). After all, such dismissals “must be available to the district
court in appropriate cases, not merely to penalize those whose conduct may be deemed to
7
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“must make four additional findings” beyond those required by the Rule
itself: “(1) the discovery violation was committed willfully or in bad faith; (2)
the client, rather than counsel, is responsible for the violation; (3) the
violation ‘substantially prejudiced the opposing party’; and (4) a lesser
sanction would not ‘substantially achieve the desired deterrent effect.’” Id.
at 758–59 (alteration adopted) (quoting F.D.I.C. v. Conner,
20 F.3d 1376,
1380–81 (5th Cir. 1994)). This heightened standard steers our analysis.
Before us, Dabral argues that entering litigation-ending sanctions was
an abuse of discretion because (1) there was insufficient evidence that
relevant data was deleted, (2) he didn’t act in bad faith when the deletions
occurred, (3) the deletions didn’t prejudice Calsep, and (4) lesser sanctions
were more appropriate. Calsep, in response, insists that Dabral’s deletions—
which amount to spoliation—were “deliberate[],” in “defiance of his
discovery obligations,” and resulted in “immense prejudice,” meaning a
default judgment was justified. We take Dabral’s arguments in turn. 6
A.
First, we consider whether a possible discovery violation occurred in
the first place. The district court concluded that Dabral deleted or
manipulated source-code data, in violation of the court’s orders and the
Federal Rules of Civil Procedure. On appeal, Dabral contends that the lower
court “improperly relieved” Calsep of its burden to prove up spoliation. But
the burden was placed on Calsep. And the court relied on the evidence
provided by Calsep’s expert, along with other evidence Calsep submitted, in
_____________________
warrant such a sanction, but to deter those who might be tempted to such conduct in the
absence of such a deterrent.” Id. at 315–16 (citation and quotation marks omitted).
6
Note that prong two of the heightened standard framework, the client’s fault,
isn’t contested here.
8
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reaching its conclusion that evidence had been “intentionally deleted.” For
example, the names of deleted files, the dates of deletion, and the nature of
the missing files were all considered. Dabral fails to respond to the finding of
spoliation, only arguing on appeal that the deletions were irrelevant or made
prior to trial.
As for noncompliance with several court orders, Dabral offers no real
contest on this point. Instead, he argues that he didn’t withhold discovery or
destroy evidence—his company did. But, he fails to advance any support for
that argument, see Fed. R. App. P. 28, meaning he doesn’t rebut the charge
of violating Rule 37(b). In reviewing the record, it’s plain that Dabral ignored
or violated several court orders, including: (1) a protective order requiring
disclosure of the “unmanipulated” source code, (2) an order compelling
Dabral to disclose a report given to his expert witness, (3) an order requiring
production of Sah’s USBs, (4) a preliminary injunction forbidding
destruction of evidence, and (5) an order compelling Dabral to provide copies
of the source code control system. Those findings are clearly supported by
the record. 7
Consequently, we conclude that the district court didn’t err in finding
that Dabral destroyed evidence and disobeyed court orders, thereby
committing sanctionable offenses.
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7
To drive the point home, consider four of the district court’s more detailed
findings. First, a few days after the agreed upon preliminary injunction was entered in
March, Dabral deleted three change sets “in violation of the agreed order.” Second, prior
to the April 2020 production (the first source code production), four databases “necessary
to restore” the data for an expert’s review were deleted. Third, a few days before the July
2020 production (the second source code production), 185,000 items in the produced data
were deleted. Fourth, just before the September 2020 production (the third and compelled
production), “separate and different destructions occurred on [two different] servers,
permanently deleting files” in the control system in a manner that made it “impossible to
see the volume or content of what was deleted.”
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B.
Next, we turn to bad faith. 8 Below, the district court concluded that
Dabral “delayed discovery, manipulated electronic data, and permanently
deleted a significant amount of electronic data.” In reaching that decision,
the court recounted Dabral’s misconduct, including (1) slow walking the
production of the source code control system and expert materials, (2)
deleting electronic evidence during discovery, including mere days after
court orders and discovery requests, (3) hiding important information, like
the existence of two control system servers, and (4) refusing to comply with
several court orders. The district court also noted that Dabral filed an
affidavit claiming Sah didn’t provide any of Calsep’s data to Dabral’s
companies in creating InPVT, but the record showed otherwise. Considering
all of that, the court concluded that Dabral’s “actions reveal a pattern of
behavior that raise the inference of bad faith and [an] intent to deprive”
Calsep of the discovery necessary to make its case.
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8
We note that there are overlapping standards at play—Rule 37 and the heightened
standard for default sanctions both require some finding of bad faith. For example, for
litigation-ending sanctions, “dismissal with prejudice [] is appropriate only if the refusal to
comply results from willfulness or bad faith and is accompanied by a clear record of delay
or contumacious conduct.” Conner, 20 F.3d at 1380 (quoting Coane v. Ferrara Pan Candy
Co., 898 F.2d 1030, 1032 (5th Cir. 1990)). That means that, under the heightened standard,
“when a defendant demonstrates flagrant bad faith and callous disregard of its
responsibilities, the district court’s choice of the extreme sanction is not an abuse of
discretion.” Emerick v. Fenick Indus., Inc.,
539 F.2d 1379, 1381 (5th Cir. 1976); Tech. Chem.
Co. v. IG-LO Prods. Corp.,
812 F.2d 222, 224 (5th Cir. 1987). Rule 37(e), too, requires
“willfulness or bad faith,” which may be satisfied when a party “fail[s] to comply with [a]
court’s discovery order even after he was personally instructed to do so,” or “by a repeated
failure to provide anything other than generalized or non-responsive answers in response
to specific requests for compliance by the court.” See Bell v. Texaco, Inc.,
493 F. App’x 587,
593 (5th Cir. 2012) (per curiam) (citations and quotation marks omitted). But here we have
no need to consider whether, and how, these various frameworks may differ. Given the
record before us, Dabral clearly acted willfully and in bad faith under any standard.
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In response, Dabral advances two defenses. First, he argues that
there’s no evidence he destroyed any software, or that he was dilatory during
discovery. Instead, Dabral emphasizes, his brother and BPSS handled the
source code control system and discovery productions, meaning they must’ve
committed the bad acts. But, that argument is unavailing.
BPSS and Dabral’s brother Sudhanshu work under the direction of
IRC, which “retains all rights to the software” made by the company. And,
as Dabral swore, he is the “100% owner” of IRC. Consequently, we cannot—
for the limited purposes of this case—separate Dabral’s existence as a party
from his companies’ actions in this litigation (i.e., his co-parties). Besides,
Dabral doesn’t cite to any binding caselaw to support his proposition. In fact,
he barely advances any cases or substantive arguments despite having an
obligation to do so. See Fed. R. App. P. 28(a). Therefore, we aren’t
convinced by his first argument.
Turning to Dabral’s contention that there’s no “clear record” of
“delay” or bad conduct in this case, he maintains that (1) any deletions to the
source code were done in the ordinary course of business and outside of any
court order, and (2) he ultimately complied with any discovery requests or
court orders, even if he did so untimely. Again, Dabral’s arguments fail. It
may be true that some of Dabral’s deletions were irrelevant or non-prejudicial.
But, the district court—relying on expert testimony—found that many of
those deletions were intentionally performed and that the deleted
information was “necessary” for Calsep’s case. After reviewing the record,
we cannot say that finding was an abuse of discretion or based on clearly
erroneous facts. At the end of the day, parties have an obligation to preserve
evidence during trial, even things that may be destroyed in the ordinary
course of business. Fed. R. Civ. P. 37(e).
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As for non-compliance, Dabral seems to miss the point. First, he
doesn’t actually contest that he missed several deadlines throughout the
case. Instead, he insists that those violations were ultimately remedied. But,
discovery delays are serious, especially when they are part of a pattern. See
United States v. $49,000 Currency, 330 F.3d 371, 377 (5th Cir. 2003)
(“Claimant-Appellants [argue that they] partially complied with previous
discovery requests, and were only a ‘little tardy’ with their final discovery
disclosures. The record, however, contradicts this claim, and instead
indicates that rather than being merely a little tardy, Claimants-Appellants
failed in several—if not all—material respects to comply with the court’s
[discovery] order.”).
And, going beyond his delays, Dabral’s misconduct also involves
ignoring or violating court orders. He flouted (1) the protective order
requiring disclosure of the “unmanipulated” source code, (2) the order
compelling him to disclose the materials provided to his expert, (3) the
preliminary injunction forbidding destruction of evidence, and (4) the order
compelling him to provide copies of the source code control system to
Calsep. Knowingly ignoring an obligation, especially multiple times, may
alone be enough to find bad faith. See Tech. Chem. Co. v. IG-LO Prods. Corp.,
812 F.2d 222, 224–25 (5th Cir. 1987) (finding no abuse of discretion in
default-judgment sanction for “repeated failures” that “culminate in a
party’s failure to comply with a court [discovery] order”). And,
noncompliance is doubly problematic when the lower court issues—like it
did here—a warning. See Bell v. Texaco, Inc.,
493 F. App’x 587, 593 (5th Cir.
2012) (holding that “Plaintiffs’ repeated failure to comply with discovery
orders, even after being warned of the possibility of sanctions and personally
instructed on how to comply, constituted willful noncompliance” justifying
litigation-ending sanctions). Much like delays, a pattern of misconduct
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doesn’t help. See id. (“Plaintiffs regularly ignored court orders, even those
ordering [basic disclosures].”).
Here, Dabral admittedly deleted evidence, delayed discovery on
several occasions, and ignored court orders. And, when he was offered one
last “chance” to “come clean” and submit an unmodified source code
control system, he didn’t. Instead, he deleted more evidence and produced a
copy of the system that had numerous other files missing. Per his own expert,
those deletions were seemingly “intentional” and done after the filing of
Calsep’s suit and even after the district court’s disclosure order. So, the
district court concluded that Dabral acted willfully and in bad faith. The court
didn’t reach that conclusion easily. Instead, it came after months of violations
and a long evidentiary hearing. Only then did it make its informed decision.
We don’t take this lightly either. But, given the record, we cannot conclude
that the district court erred in finding that Dabral acted in bad faith by
blatantly ignoring court orders—despite a warning and a last chance to
comply from the court—and deleting important evidence.
C.
Next, we consider prejudice. Generally, we find prejudice when a
party’s case-in-chief is seriously and gravely impacted. See Bell, 493 F. App’x
at 593 (“[W]e consider whether the other party’s preparation for trial was
substantially prejudiced.” (citation and quotation marks omitted)). Below,
Calsep argued that Dabral’s deletions and discovery violations harmed its
ability to litigate its claims. Calsep’s expert testified that the deleted files
were critical to the case because, without them, he couldn’t properly
compare PVTsim and InPVT, meaning Calsep couldn’t directly prove its
misappropriation claim. Dabral’s own expert admits that several deletions
occurred and were permanent. In response, Dabral maintains that the deleted
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data wasn’t relevant to the case and the scale of deletions was
overexaggerated.
The district court disagreed. Relying on Calsep’s expert, the court
concluded that, without the missing files, Calsep couldn’t perform the
analyses that were necessary to prove up its misappropriation claims. Per the
court, Calsep’s “expert, who has performed similar analysis in over 100
cases, testified that he had no confidence in the data, or that he could get a
reliable result.” Therefore, said the lower court, Calsep was unquestionably
prejudiced by Dabral’s conduct, which “prevented [Calsep] from obtaining
evidence necessary to establish [its] claim” against Dabral.9 We agree.
On the record before us, we cannot say that the district court’s
finding—namely, that the missing items were relevant and that their
deletions was prejudicial—was an abuse of discretion or based on a clearly
erroneous assessment of the facts. Calsep proffered plenty of proof that the
deletions were important, including expert testimony and circumstantial
evidence. Besides, the mere inconvenience of dealing with Dabral’s unusable
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9
At a hearing, the magistrate judge asked whether Calsep’s expert could “do [his]
planned analysis and render an expert opinion with what [he had] been provided.” His
response:
Well, the short answer is no. . . . We need to look at the entire history, the
communication, the development and that audit trail of everything that
happened. What was influencing the project, how was the project
managed, how was the code changing, what are the documents and design
documents. . . . We have tried for a long time to get the material. We’ve
been stymied. These are unprecedented levels of manipulation. . . . So as
we stand today we have, really I’ll call it garbage. In the computer industry
we have a saying, “garbage in, garbage out.” And so, if I were to try to—
you know, the net of all that is I have no confidence that I can—it would
just not be professionally sound to try to move forward. Based on the
information that we have, I have no confidence that we have legitimate
data and that it would result in valid results.
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productions and being forced to repeatedly file motions to compel may alone
amount to prejudice. See Bell, 493 F. App’x at 594 (“[T]he district court did
not abuse its discretion in finding that Plaintiffs’ noncompliance [with
discovery orders] in this case caused significant delay and required the filing
of multiple motions to compel. As such, it was not an abuse of discretion to
conclude that [the Defendant] was substantially prejudiced by Plaintiffs’
noncompliance.”). Consequently, we find the district court didn’t err by
finding Calsep was prejudiced.
D.
Now, we ask whether the district court appropriately considered
lesser sanctions. As a general matter, litigation-ending sanctions are reserved
for the most heinous of scenarios. See Emerick v. Fenick Indus., Inc., 539 F.2d
1379, 1381 (5th Cir. 1976). Therefore, a court must consider whether some
lesser sanction would’ve “substantially achieve[d] the desired deterrent
effect” without ending the case. Conner, 20 F.3d at 1381.
Here, the district court found Dabral’s conduct to be so
“egregious”—given it involved “willful[] and intentional[] attempt[s] to
manipulate the judicial system” through dilatory tactics and disobedience—
that future actors wouldn’t have been sufficiently deterred with a “less
drastic sanction.” The court emphasized that, although Dabral was “given
. . . multiple opportunities to comply” with the court’s orders—including an
instruction that he had one “last chance” to submit his source code control
system—Dabral still didn’t comply. All in all, the district court concluded,
because Dabral destroyed evidence crucial for Calsep to prove its case and
disregarded four separate court orders, lesser sanctions were insufficient. On
appeal, Dabral contends that the “district court failed to consider any lesser
sanctions” and, relatedly, an adverse inference instruction would’ve worked
fine. But, we disagree for two reasons.
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First, Dabral is mistaken—the district court did consider lesser
sanctions. Admittedly, that consideration wasn’t greatly detailed, but by
concluding that a “less drastic sanction” wasn’t appropriate, the lower court
did nod to the possible imposition of other sanctions.
Second, and more importantly, given the facts of this case, the court
was not required to consider specific alternative sanctions. For instance, in In
re Taxotere (Docetaxel) Products Liability Litigation, we found that “lesser
sanctions would not have served the best interests of justice” when a party
failed to comply with a “required [discovery] deadline.” 966 F. 3d 351, 360
(5th Cir. 2020) (alteration adopted) (citation and quotation marks omitted).
Although the party “provided other forms of discovery,” it “consistently
failed to comply with the court’s [discovery] order” and, as such, it was
“unclear what lesser sanctions could have been appropriate following the
district court’s warnings and second chances.”
Id. (citations and quotation
marks omitted). While the district court could have given closer
consideration to monetary sanctions or an adverse inference here, see Bell,
493 F. App’x at 592–93, doing so is not always required. Courts have not
required deep consideration of alternatives when it’s plain that a lesser
sanction wouldn’t have done the trick. See $49,000 Currency,
330 F.3d at 379
(“[W]ere we now to adopt Claimants–Appellants’ view, we would have to
surmise that at this point in the discovery fiasco, the district court was yet
required to attempt to coax Claimants–Appellants into compliance with its
order by imposing incrementally increasing sanctions. We do not adopt such
a view.”); Law Funder,
924 F.3d at 760 (“The district court explicitly found
prejudice to [the movant] in its sanctions order, and it found in its order
denying [the wrongdoer’s] postjudgment motions that [the wrongdoer] acted
willfully and that lesser sanctions would not have sufficed.”). That’s
especially true where, as here, the court warned Dabral to comply with its
orders or face penalties. Warnings have weight—they may even allow a court
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to jump straight to litigation-ending sanctions. Vikas, 23 F.4th at 455–56
(“[T]he failure of express warnings could allow the court to find that a lesser
sanction would not substantially achieve the desired deterrent effect.”
(citation and quotation marks omitted)); Bell, 493 F. App’x at 593 (“At that
time, the court again warned Plaintiffs that their case would be dismissed as
a punitive sanction if they continued to ignore court orders. This warning had
no apparent effect on Plaintiffs’ behavior in the litigation. We conclude that
the district court did not abuse its discretion in determining that Plaintiffs’
previous failure to adhere despite the imposition of less drastic sanctions
indicated that additional monetary sanctions would not have ensured
compliance.”).
Here, Dabral admittedly violated several court orders. He doesn’t
contest that. Instead, he contends that the violations weren’t that serious and
that a lesser punishment would’ve been more fitting. But, in making that
argument, Dabral misunderstands the extreme nature of his misconduct—
intentionally deleting evidence key to Calsep’s misappropriation claim in the
face of multiple court orders. See Balancecxi, Inc. v. Int’l Consulting & Rsch.
Grp., LLC, No. 1:19-cv-0767-RP, 2020 WL 6886258, at *14 (W.D. Tex. Nov.
24, 2020) (“It is hard to imagine a more pernicious pattern of evidence
destruction. The Defendants deleted evidence multiple times, did so
intentionally, and did so despite knowing they had a duty to preserve the
evidence. Further, the evidence they destroyed was not peripheral to the
case—it went to the very heart of [the plaintiff]’s trade secret claims, and
likely would have proven or disproven those claims. All of this supports
[litigation-ending] sanctions.”). Given that level of conduct, the district
court was not required to consider lesser sanctions in any more detail than it
did.
That’s doubly true when you consider the district court’s leniency
prior to the default judgment. In Taxotere, we noted that giving a “‘second or
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third chance’ is itself ‘a lenient sanction, which, when met with further
default, may justify imposition of the ultimate sanction of dismissal with
prejudice.’” 966 F. 3d at 360 (emphasis in original) (quoting Callip v. Harris
Cnty. Child Welfare Dep’t, 757 F.2d 1513, 1521 (5th Cir. 1985) (per curiam)).
That’s not to say that no details are required. See Vikas, 23 F.4th at 450–51
(“Such severe sanctions cannot survive review without careful findings of
fact, and ‘careful’ cannot describe the district court’s one-page, 160-word
order ending [this] case. The court stressed irrelevant or unsupported
findings, never explained the sanction’s legal basis, and never seriously
considered lesser sanctions.”). Admittedly, a court may need to “try lesser
sanctions,” or, at the very least, “explain . . . why lesser sanctions would
fail.” Id. at 456. But as discussed above, the district court did consider lesser
sanctions and even issued a warning, a statement that may itself have been a
lesser sanction. Taxotere, 966 F. 3d at 360 (a “second or third chance is itself
a lenient sanction” (citation and quotation marks omitted)).
In sum, a detailed consideration of lesser sanctions isn’t required
where, as here, a court appropriately concludes that that a party’s act was
particularly egregious, part of a pattern of repeated violations, and—as
evidenced by the wrongdoer’s conduct—there’s some indication that lesser
sanctions would be futile or ignored. Here, prior to its ruling, the district
court warned Dabral that this was his last chance to “come clean,” and
instructed him to comply with the court’s discovery orders. In the sanctions
ruling itself, issued after a hearing, the court emphasized that—given
Dabral’s flagrant violations and the destruction of evidence—this was an
“egregious case,” and any lesser of a sanction “would not achieve the
desired deterrent effect.” We agree and see no error in the court’s analysis.
See Taxotere, 966 F.3d at 360 (“Given this record, it is unclear what lesser
sanctions could have been appropriate following the district court’s warnings
and second chances.” (citation and quotation marks omitted)). A default
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judgment is sometimes the only practicable solution. See KCI USA, Inc. v.
Healthcare Essentials, Inc., 801 F. App’x 928, 935 (6th Cir. 2020) (“It is in
cases like this one, where the obstruction prevented the other party from
accessing evidence needed to bring the case, that default is most likely to be
the appropriate sanction.” (alteration adopted) (citation and quotation marks
omitted)). Additionally, it doesn’t appear that anything lesser would’ve
“serve[d] the bests interests of justice.” In re Deepwater Horizon,
907 F.3d
232, 236 (5th Cir. 2018).
…
Given the record and the law, we cannot say that the district court
erred in its sanctions analysis. Moore, 735 F.3d at 309 (“The question is not
whether the Court of Appeals would as an original matter have dismissed the
action; it is whether the District Court abused its discretion in so doing.”
(alterations adopted) (citations and quotation marks omitted)). Therefore,
we AFFIRM the lower court’s sanctions.
III.
Finally, we briefly address Dabral’s motion for reconsideration.
Under Federal Rule of Civil Procedure 60(b), a party may request relief from
a “final judgment” for various reasons, including “newly discovered
evidence that, with reasonable diligence, could not have been discovered”
sooner. To succeed on such a motion, “a movant must demonstrate: (1) that
[he] exercised due diligence in obtaining the information; and (2) that the
evidence is material and controlling and clearly would have produced a
different result if present before the original judgment.” Hesling v. CSX
Transp., Inc., 396 F.3d 632, 639 (5th Cir. 2005) (citation and quotation marks
omitted).
Where, as here, the party moving for reconsideration failed to object
below to the magistrate judge’s report and recommendation, our review of
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the denial of that motion “is limited to plain error.” Johnson-Williams v.
Mortg. Elec. Registration Sys., Inc., 675 F. App’x 396, 400 (5th Cir. 2017). To
prove plain error, a party “must show (1) error (2) that is plain and (3) that
affects substantial rights.” Lawrence v. Fed. Home Loan Mortg. Corp.,
808 F.3d
670, 675 (5th Cir. 2015) (citing United States v. Escalante–Reyes,
689 F.3d 415,
419 (5th Cir. 2012) (en banc)). Still, a court may “remedy the error” only if
it also “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.”
Id.
Seven months after the district court adopted the sanctions order,
Dabral filed a motion to reconsider. In that motion, Dabral contended that
“[d]ue to forensic images that were recently discovered in a BPSS storage
unit in India,” the “critical files” that had been deleted were “now available
for Calsep’s review.” Dabral—insisting that there was “no reason” why he
would have “intentionally withh[e]ld the images” during the lawsuit, and
that he and his brother “completely forgot about them”—maintained that
the forensic images “represent exact copies of the source code and [its]
history” that Calsep sought in discovery. As such, Dabral, asked the district
court to withdraw the sanctions, and “allow the parties to engage in
resolution discussions . . . or litigate the case on its merits.” But, the district
court denied Dabral’s motion. The court found that, “because the evidence
is not new,” it could have been discovered with due diligence before.
Additionally, it determined that Dabral failed to show “that the evidence is
controlling and material such that the outcome would have been different.”
We agree.
On appeal, Dabral insists that the court incorrectly imputed
knowledge of the images to him. That’s wrong. The simple truth is that the
images in question existed during the course of the litigation. That’s plain
from the record—reports from November of 2019 discussed the images.
Dabral doesn’t deny that. Instead, he argues that he “could not . . . have
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noticed [a] scant reference” to the images in a report, and maintains that such
information was “buried” in the record. Yet, Dabral cannot offer any
reason—other than mere forgetfulness—why he couldn’t acquire the images
sooner. That’s fatal for Dabral. See Johnson-Williams, 675 F. App’x at 401
(“[The party] has not explained why she could not have obtained the chain
of title analysis before judgment was rendered. All of the documents relied
upon in the analysis predate the lawsuit, and the affidavit from the author of
the analysis does not indicate that he was unavailable to conduct the analysis
before judgment was rendered. The mere fact that [the party] did not obtain
the analysis until after judgment was rendered does not establish that it could
not have been obtained before then with the exercise of diligence.”). And,
Dabral hasn’t shown that he acted with diligence during the case to locate
these images. See Thermacor Process, L.P. v. BASF Corp.,
567 F.3d 736, 744
(5th Cir. 2009) (although movant did not receive evidence until after
judgment, the party didn’t show “that it acted with due diligence to obtain
the [evidence] . . . nor has any evidence been provided that [the evidence]
could not have been obtained prior to responding to [a] summary judgment
motion”). At the end of the day, these images aren’t new. Johnson Waste
Materials v. Marshall,
611 F.2d 593, 598 (5th Cir. 1980) (“Given [the party]’s
testimony that he ‘just couldn’t find’ the cancelled checks at the time of trial
because he ‘just had misplaced them at home’ and other statements to that
effect, we agree with the lower court that the evidence was not ‘newly
discovered’ but merely ‘newly produced.’”).
Dabral also contends the images would have changed the outcome of
the case. But, we don’t find that they “clearly would have produced a
different result” in the judgment. Hesling, 396 F.3d at 639. Although Dabral
argues that the images change the game, Calsep’s expert insists that too
much data is still missing from the source code control system, rendering a
proper review impossible. The district court credited that testimony in its
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order, and there’s no reason to question that now. Not to mention, the
district court rested the sanctions order on far more than the portion of
destroyed evidence seen in these forensic images. Cf. id. at 641 (“Because
the withheld documents would not have changed the preemption
determination, they clearly would not have affected the ultimate case
determination.”).
In the end, Dabral admittedly knew of the images and, before us, fails
to show why he could not have acquired them with reasonable diligence.
Gov’t Fin. Servs. One L.P. v. Peyton Place, Inc., 62 F.3d 767, 772 (5th Cir.
1995). Because there’s no question that the lower court’s decision does not
“seriously affect[] the fairness, integrity, or public reputation of judicial
proceedings,” there was no plain error. Lawrence,
808 F.3d at 675.
…
Considering the standard of review and the record before us, we
AFFIRM the district court’s decision on Dabral’s motion for
reconsideration.
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