Are you Prepared to Handle Fabricated Evidence?

This week on Case of the Week with Kelly Twigger, we explore a groundbreaking decision from Frazier v. Se. Ga. Health Sys., Inc., involving alleged fabrication of video evidence in a medical malpractice lawsuit. The case, presided over by Judge Lisa Wood, highlights critical issues surrounding the authenticity of video evidence and the use of a court's inherent authority to impose sanctions.

While this video was not AI-generated or a deepfake, it provides a fascinating glimpse into how courts evaluate fabricated evidence and offers key takeaways for anticipating similar challenges with emerging technologies.

Kelly dives into the Court’s analysis, including findings of bad faith, fraud on the Court, and the decision to dismiss the case with prejudice. Learn how litigators can address authenticity concerns early, leverage the Court’s inherent authority when procedural rules fall short, and safeguard their cases against the rising threat of manipulated digital evidence.

Tune in for practical insights and actionable strategies to stay ahead in the complex landscape of eDiscovery.

Frazier v. Se. Ga. Health Sys., Inc.
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Transcript

Kelly Twigger 0:13

Welcome to the Case of the Week podcast, where each week, we break down a recent decision in electronic discovery case law and talk about the practical impact for you and your clients and keep you up to date on your obligations with electronically stored information as evidence. If you're a litigator, legal professional or you love the power of ESI as much as I do, this is the place to be. I'm Kelly Twigger, the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys, with more than 25 years of experience navigating the evolving landscape of litigation and eDiscovery. I'm a practicing attorney, author, speaker, entrepreneur and now podcaster who works as a discovery strategist and expert for clients at ESI Attorneys and to provide that knowledge to all legal professionals through our e-discovery assistant platform. In each episode, we'll tackle a new decision in e-discovery case law and how it shapes both your litigation strategy and planning for risk mitigation. If you're ready for blunt, actionable insights that keep you ahead of the curve, and maybe a few laughs along the way, this is your go-to podcast. Subscribe or follow now to start embracing the episode of Case of the Week brought to you by eDiscovery Assistant.

Kelly Twigger 1:35

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 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. All right, let's dive into this week's decision that comes to us from Fraser v Southeast Southeast Georgia Health Systems Inc. This is a decision from March 1st of 2024, written by United States District Judge Lisa Wood. As always, we add the issues to each of our decisions in the Discovery Assistant, and this week's issues include authentication, photograph, mobile device, form of production, bad faith, dismissal, medical records, sanctions, forensic examination, metadata, failure to produce video and failure to preserve Lots of tags this week. All right, let's talk about the facts of the case. Now we are before the court here on plaintiff's objections to the magistrate's report and recommendation issued on November 8, 2023. In that R&R, the magistrate judge recommended that plaintiff's complaint be dismissed in its entirety as a sanction for the submission of fake video evidence.

Kelly Twigger 2:52

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 navel 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. That was in a video that plaintiffs claimed that they took during his follow-up visit in Dr Stevenson's office a few weeks after the initial procedure. The parties and the court referred to the video as the U-cut video because the video was created when Mr Frazier combined two separate original videos which he allegedly recorded on his cell phone in the U-Cut video editing app. The original videos used to create the U-Cut video were requested, but plaintiff never produced them. The U-Cut video allegedly shows Mr Frazier shortly after Dr Stevenson had removed the foreign objects from his nasal cavity and quote gauze, packing and blood clots that were removed from his nasal cavity and placed in a kidney basin, close quote After plaintiffs produced the U-Cut video, they filed a second amended complaint and relied on the video as the sole evidence of the allegations.

Kelly Twigger 4:24

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 defendant's expert was unable to locate the original video files and could not determine whether the U-cut 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 quote significant discrepancies. Close quote between the features of the room in the U-cut video and the room where the exam actually occurred, in which the plaintiffs alleged the video in question was made. Defendants argue that the UCUT 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 UCUT 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 UCUT 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 U-cut video.

Kelly Twigger 5:54

After an evidentiary hearing, the magistrate judge found the U-cut video was fabricated and recommended that the district court dismiss plaintiff's complaint with prejudice Pursuant to rule 72,. The plaintiff's timely objected to three of the magistrate's findings which are now before the district court First, that the case warrants the court's exercise of its inherent power to sanction. Second, that plaintiffs willfully fabricated the U-cut video. And third, 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 Rule 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. So what is the district court's analysis here?

Kelly Twigger 6:49

Following the magistrate's report and recommendation, the district judge began by overruling plaintiff's objections that the magistrate improperly exercised the court's inherent authority. Judge Wood here cites the case law outlining the court's inherent authority, noting that it is not governed by statute or rule, as the plaintiff suggested, but, quote by the control necessarily vested in courts to manage their own affairs so as to achieve the ordinary orderly and expeditious disposition of cases. Close quote. 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.

Kelly Twigger 7:31

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 procedural rule, and that their conduct either 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 the 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, according to the court quote. Thankfully, 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 close quote. The court also found that the plaintiffs had abused the judicial process and committed fraud on the court when they fabricated the U-Cut video and submitted it to defendants during discovery. The district court also noted that the video here was quote hardly a minor side piece close quote and instead represented the centerpiece of the plaintiff's 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 testifying 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 as a sanction to sanction plaintiffs as appropriate.

Kelly Twigger 9:13

The court then turned to the plaintiff's second objection, whether or not the plaintiffs willfully fabricated the U-Cut video. Now that the court's inherent authority has been unlocked, the next step is to find out what the appropriate sanction is here, and the magistrate judge concluded that Mr Frazier did not record the U-Cut video in suite 480 on the date of the follow-up exam. The magistrate judge further found that quote the U-Cut video could not have been created by accident. Close quote and quote Mr Frazier deliberately recorded himself and the purported bloody foreign materials at some unknown location on some unknown date. Close quote the district court found that the defendants had met their burden to prove that plaintiffs willfully fabricated the U-cut video by clear and convincing evidence based on the facts cited by the magistrate judge. Defendant's burden was to prove that plaintiffs fabricated the U-cut video and, more specifically, to prove Mr Frazier did not record the U-cut video in suite 480 on February 25th 2020. Defendant's burden was not to prove when the original videos, which were never produced, the defendants were recorded.

Kelly Twigger 10:19

In reaching the conclusion that the U-Cut video was fabricated, the district court relied on the magistrate judge's findings, including the nature of the U-Cut video, that it was created combining two separate original videos in a video editing app and plaintiffs had not produced the original videos. The timing of the U-Cut video's production Even though Mr Frazier allegedly recorded the U-Cut video a year before the lawsuit began, plaintiffs did not produce the U-Cut video until six months after initiating the suit. And plaintiffs did not mention the U-Cut video in their pleadings until their second amended complaint, which was filed about 10 months after the original complaint the visible inconsistencies between the U-Cut video and Suite 180, including different configuration of ceiling tiles, lights and air vents, different wall color, different cabinet hardware, different cabinet color and different medical supply containers. Court also found sworn testimony and voluminous maintenance records regarding the upkeep and any alterations of suite 480, showing that no alterations of changes to suite 480 occurred between the times 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 U-Cut video.

Kelly Twigger 11:52

Finally, the court addressed whether dismissal was an appropriate sanction or if there was an adequate lesser sanction that could be applied here and 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. Quote plaintiffs willfully fabricated video, evidence in bad faith and dismissal with prejudice is the only adequate remedy. Close quote Because plaintiff's conduct is willful and lesser sanctions are not appropriate, the district court overruled plaintiff's 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. Quote 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, cause defendants to protect the court's integrity and to deter others from engaging in similar misconduct. Furthermore, dismissal with prejudice is warranted because the U-Cut video was offered as key support for a pivotal claim in plaintiff's case. With that, the district court overruled plaintiff's third objection, adopted the magistrate's report and recommendation and granted defendants motion to dismiss plaintiff's third objection, adopted the magistrate's report and recommendation and granted defendant's motion to dismiss plaintiff's second amended complaint as a sanction for fabricating evidence. The case was then dismissed with prejudice.

Kelly Twigger 13:25

One other very interesting note from the district court's decision is its reliance on the Rossback decision as an analogous case in which the plaintiff fabricated text messages as evidence. We covered Rossback back on episode 37 of Case of the Week in 2021, so you can always take a look back at that case. All right. What are our takeaways from today's decision? Well, 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 lookout for those early when video evidence is part of a case particularly pivotal evidence, as it was in this case.

Kelly Twigger 14:07

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 deepfake evidence from happening later.

Kelly Twigger 14:33

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 Rossback to rely on as needed.

Kelly Twigger 15:05

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 fabricating evidence has not met the elements of Rule 37 or its subsections, but has clear and convincing evidence of fraud, I would say that differently. 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 kind of 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.

Kelly Twigger 15:59

All right, 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. As always, if you have suggestions for a case to be covered, please drop me a line. Love to hear from you. If you'd like to receive a case of the week delivered to your inbox via our weekly newsletter, you can sign up at ediscoveryassistantcom backslash blog or if you're interested in doing a free trial of our case law and resource database, you can jump to ediscoveryassistantcom to sign up to get started. Thanks so much. Thanks for joining me on the Case of the Week podcast Tune in next episode as I discuss a new decision in eDiscovery case law and identify the issues you need to be paying attention to and how they can help you do better discovery for your clients and leverage the power of ESI. Be sure to subscribe and leave a review to help others discover the show and be kept in the know on all things electronic discovery. I'm Kelly Twigger. See you next time.