Episode 139: Are you Prepared to Handle Fabricated Evidence?

In Episode 139, Kelly Twigger discusses how fabricated video led to a dismissal as a sanction under the court’s inherent authority and what you need to be on the look out for as we wade into deepfakes in AI in Frazier v. Se. Ga. Health Sys., Inc., 2024 WL 889994 (S.D. Ga. 2024).

Introduction

Welcome to this week’s episode of our Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education. Thanks so much for joining me today.

If you haven’t yet had a chance to grab our 2023 eDiscovery Case Law Report that discusses the key trends and cases from last year, you can download that today.

Each week on the Case of the Week I choose a recent decision in ediscovery and talk to you about the practical implications. This week’s decision involves the alleged fabrication of video evidence in a medical malpractice case. And while the video was not a deepfake or AI-created video, the decision provides guidance on what kinds of things a court will look at in determining the validity of video evidence and also gives us some insights as to how we’re going to be able to react as we start seeing that sort of deepfake evidence.

Let’s dive into this week’s decision. It comes to us from Frazier v. Se. Ga. Health Sys., Inc. This is a decision from March 1, 2024, written by United States District Judge Lisa Wood. As always, we add the issues to each of our decisions in eDiscovery Assistant, and this week’s issues include authentication, mobile device, form of production, bad faith, dismissal, medical records, sanctions, forensic examination, metadata, failure to produce, video, and failure to preserve. Lots of issues this week.

Facts

We are before the Court here on plaintiffs’ objections to the Magistrate Judge’s report and recommendation issued on November 8, 2023. In that R&R, the Magistrate Judge recommended that plaintiffs’ complaint be dismissed in its entirety as a sanction for the submission of fake video evidence. This is a medical malpractice case. Defendant, Dr. Stevenson, performed a septoplasty on the plaintiff, Cedric Frazier. The plaintiffs, Mr. Frazier and his wife, alleged that Dr. Stevenson left gauze or packing in Mr. Frazier’s nasal cavity after the procedure, and that the foreign items remained there until Dr. Stevenson removed them weeks later, causing Mr. Frazier serious pain and injury. The defendants deny that they left anything in Mr. Frazier’s naval cavity.

The issue before the judge here was the authenticity of a video that was produced by the plaintiffs, which showed a mound of bloody materials in a kidney-shaped dish. Plaintiffs claimed that they took the video during Mr. Frazier’s follow-up visit in Dr. Stevenson’s office a few weeks after the initial procedure. The parties and the Court refer to the video as the YouCut video, because the video was created when Mr. Frazier combined two separate original videos, which he allegedly recorded on his cell phone, in the YouCut video editing app. The original videos used to create the YouCut video were requested, but plaintiff never produced them.

The YouCut video allegedly shows Mr. Frazier shortly after Dr. Stevenson had removed the foreign objects from his nasal cavity and “gauze packing and blood clots that were removed from his nasal cavity and placed in a kidney basin.” After plaintiffs produced the YouCut video, they filed a second amended complaint and relied on the video as the sole evidence of the allegations. Defendants requested the original video files, along with the associated metadata recorded on Mr. Frazier’s phone in order to challenge their authenticity. The plaintiffs did not produce the original videos, but they did provide a screenshot of an original video that purportedly shows some of the video’s metadata.

The Magistrate Judge then ordered a forensic examination of Mr. Frazier’s phone, but defendants’ expert was unable to locate the original video files and could not determine whether the YouCut video was, in fact, authentic.

The plaintiffs then requested an inspection of the doctor’s office, presumably to demonstrate that the video was, in fact, taken in the doctor’s office. Both parties attended the inspection with their own videographers and took their own video within the doctor’s office, and surprise — the video revealed “significant discrepancies” between the features of the room in the YouCut video and the room where the exam actually occurred. Defendants argue that the YouCut video could not have been recorded in Suite 480 during Mr. Frazier’s February 25, 2020, follow-up visit because the room shown in the YouCut video is visibly inconsistent with the exam rooms in Suite 480, which is where Dr. Stevenson did the exam. Plaintiffs counter that Mr. Frazier recorded the YouCut video in Suite 480 immediately following his appointment with Dr. Stevenson, but did not offer any explanation for the differences in the room in the YouCut video.

After an evidentiary hearing, the Magistrate Judge found the YouCut video was fabricated and recommended that the District Court dismiss plaintiffs’ complaint with prejudice. Pursuant to Rule 72, the plaintiffs timely objected to three of the Magistrate’s findings, which are now before the District Court:

1. That the case warrants the Court’s exercise of its inherent power to sanction;
2. That plaintiffs willfully fabricated the YouCut video; and
3. That dismissal is a proper sanction.

Now, we talk a lot here on the Case of the Week about sanctions and even dismissal, but most of those motions are made pursuant to Federal Rules of Civil Procedure 37 as a motion for sanctions and not based on the Court’s inherent authority, as we have here on a motion to dismiss. For that reason, this is a key decision to keep in your back pocket when you don’t have the elements required for Rule 37, but you suspect that there may be fabricated evidence.

Analysis

What is the District Court’s analysis here following the Magistrate’s report and recommendation?

The District Judge began by overruling plaintiffs’ objections that the Magistrate improperly exercised the Court’s inherent authority. Judge Wood here cites case law outlining the Court’s inherent authority, noting that it is not governed by statute or rule — as the plaintiff suggested — but “by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” As part of that authority, courts may fashion an appropriate sanction for conduct which abuses the judicial process. However, before exercising its inherent authority, the court must find that the party acted in bad faith.

Plaintiffs offer two objections to the Magistrate’s recommendation of the use of the Court’s inherent authority:

• that the exercise of the Court’s inherent authority is improper without finding that plaintiffs violated a court order or a procedural rule, and
• that their conduct constituted neither an abuse of the judicial process nor a fraud upon the Court.

The Court rejected the first premise and held that the court’s inherent authority is unlocked with a finding of bad faith and does not require the disobedience of a rule or court order, and then went on to state that the conduct in this case — doctoring evidence— is most often the cause for invoking the inherent powers doctrine. The Court stated that “[t]hankfully, standards of conduct have not deteriorated so far that an order warning litigants not to doctor evidence is required before a court can impose sanctions for doctoring evidence.”

The Court also found that the plaintiffs had abused the judicial process and committed fraud on the Court when they fabricated the YouCut video and submitted it to defendants during discovery. The District Court also noted that the video here was “hardly a minor side piece” and instead represented the centerpiece of the plaintiffs’ case, or what it refers to as “pivotal” evidence. Plaintiffs’ actions to fabricate evidence provided to the defendants during discovery, reference and rely upon the fabricated evidence in pleadings filed in the Court, and fraudulently testify to the video’s authenticity under oath all supported a finding that plaintiffs’ abused the judicial process. With a showing of bad faith and a finding that plaintiffs committed fraud and abused the judicial process, the District Court affirmed the Magistrate’s exercise of its inherent authority to sanction plaintiffs as appropriate.

The Court then turned to the plaintiffs’ second objection — whether or not the plaintiffs willfully fabricated the YouCut video. Now that the Court’s inherent authority has been unlocked, the next step is to find out what the appropriate sanction is here.

The Magistrate Judge concluded that Mr. Frazier did not record the YouCut video in Suite 480 on the date of the follow-up exam. The Magistrate Judge further found that “the YouCut video could not have been created by accident”, and “Mr. Frazier deliberately recorded himself and the purported bloody, foreign materials at some unknown location on some unknown date.” The District Court found that the defendants had met their burden to prove that plaintiffs willfully fabricated the YouCut video by clear and convincing evidence based on the facts cited by the Magistrate Judge. Defendants’ burden was to prove that plaintiffs fabricated the YouCut video and, more specifically, to prove Mr. Frazier did not record the YouCut video in Suite 480 on February 25, 2020. Defendants’ burden was not to prove when the original videos — which were never produced by the defendants — were recorded.

In reaching the conclusion that the YouCut video was fabricated, the District Court relied on the Magistrate Judge’s findings, including:

• the nature of the YouCut video,
• that it was created combining two separate original videos in a video editing app and plaintiffs have not produced the original videos, and
• the timing of the YouCut video’s production.

Even though Mr. Frazier allegedly recorded the YouCut video a year before the lawsuit began, plaintiffs did not produce the YouCut video until six months after initiating this suit, and plaintiffs did not mention the YouCut video in their pleadings until their second amended complaint, which was filed about 10 months after the original complaint.

The visible inconsistencies between the YouCut video and Suite 480 included different configurations of ceiling tiles, lights, and air vents, different wall color, different cabinet hardware, different cabinet color, and different medical supply containers. The Court also found sworn testimony and voluminous maintenance records regarding the upkeep and any alterations of Suite 480, showing that no alterations or changes to Suite 480 occurred between the time that plaintiffs alleged Mr. Frazier recorded the video and the time the walkthrough occurred, and finally, sworn testimony that Dr. Stevenson only uses Suite 480 for his follow-up exams.  

The Court also noted that the plaintiffs’ failed to provide any evidence to refute the alleged fraud, even though they were given multiple opportunities. With that, the District Court overruled plaintiffs’ objections to the finding that plaintiffs fabricated the YouCut video.

Finally, the Court addressed whether dismissal was an appropriate sanction or if there was an adequate lesser sanction that could be applied here. The District Court points directly to the analysis by the Magistrate Judge in his report, which notes that he considered and found lesser sanctions inadequate: “Plaintiffs willfully fabricated video evidence in bad faith, and dismissal with prejudice is the only adequate remedy.” Because plaintiffs’ conduct is willful and lesser sanctions were not appropriate, the District Court overruled plaintiffs’ objection to dismissal being the appropriate sanction.

The District Court then goes through a detailed analysis of when the dismissal is appropriate, and this language from its ruling is particularly key:

One common understanding underlies all cases, including those proffered by plaintiffs, where a court is asked to dismiss a suit: Courts have the authority to sanction litigants that present fabricated evidence and then falsely testify as to its authenticity . . . . Dismissal with prejudice is the appropriate sanction to address the prejudice plaintiffs’ conduct caused Defendants, to protect the Court’s integrity, and to deter others from engaging in similar misconduct. . . . Furthermore, dismissal with prejudice is warranted because the YouCut video was offered as key support for a pivotal claim in Plaintiffs’ case.

With that, the District Court overruled plaintiffs’ third objection, adopted the Magistrate’s report and recommendation, and granted defendants’ motion to dismiss plaintiffs’ second amended complaint as a sanction for fabricating evidence. The case was then dismissed with prejudice.

One other very interesting note from the District Court’s decision is its reliance on the Rossbach v. Montefiore Med. Ctr. decision as an analogous case in which the plaintiff fabricated text messages as evidence. We covered Rossbach back on Episode 37 of Case of the Week in 2021, so you can always take a look back at that case.

Takeaways

There are a number of things about this decision that made it a really interesting choice for our Case of the Week this week. First, while there are no allegations that AI was used here to create the fabricated video, we will likely start seeing more and more fabricated evidentiary issues, and you’ll want to be on the look out for those early. Where video evidence is part of a case — particularly pivotal evidence — as it was in this case, get the video early and consider authenticity. Pay attention to the list of details here that the Court pointed to as a basis for finding it was fabricated. You want to dive into the details of the differences between the video you’re seeing and what the actual scenario looked like.

It may even cause you to want to consider taking video of what a scene looks like at the time it happens to be able to preclude deep fake evidence from happening later. Here, it was really interesting to me that plaintiffs were the ones who asked for the inspection of Dr. Stevenson’s office. I mean, surely they had to know that it would not be the same, or maybe they had gone to such efforts to replicate it in their own video that they thought the inspection would support them. That was clearly not the case from the factual differences in the two rooms.

Second, take note that this motion was a motion to dismiss, not a motion for sanctions. That’s another strategy that you can file in your back pocket and be able to leverage this decision and the one in Rossbach to rely on as needed.

Third, the power of the Court to sanction plaintiffs here came from its inherent authority and not from Rule 37. The Court here is clear — where there is bad faith, the Court’s inherent authority is an avenue to sanctions. That is crucial to consider where a party facing fabricated evidence has not met the elements of Rule 37 or its subsections.

Finally, the timeline of the production of the video evidence weighed against plaintiffs here, too, and coupled with the lack of evidence to support their suppositions was fatal. That takes us back to what our normal course is here on Case of the Week, which is that the timeline of the case is always part of your factual analysis. Don’t forget about it when you’re putting together your motions or you’re trying to defend.

Conclusion

That’s our Case of the Week for this week. Thanks so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database.

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See you next Tuesday!