Libel Suit Terminated Because of Plaintiff’s Discovery Misconduct

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From Luo v. Wang, decided last week by the Tenth Circuit, in an opinion by Judge Paul Kelly, joined by Judges Gregory Phillips and Carolyn McHugh:

At one point during their time together in Colorado, Mr. Wang purchased a plane ticket for Ms. Luo to return to China. But Ms. Luo lost her passport, so she did not take the flight. She reported her lost passport to the Aurora, Colorado police department. She later located the passport and did not pursue the matter further.

In October 2013, Ms. Luo ended her relationship with Mr. Wang and moved to California. Years later, in 2020, she learned through a separate lawsuit in California that Mr. Wang had made what she alleges were false statements about her. Specifically, Mr. Wang had allegedly denounced Ms. Luo for (1) falsely accusing Mr. Chen of sexual assault, (2) filing a false police report that she had lost her passport, and (3) fraudulently obtaining travel insurance funds based on the lost passport….

Ms. Luo filed this diversity action in September 2020. She complained that Mr. Wang had unreasonably disclosed private facts about her and had committed outrageous conduct, intentional infliction of emotional distress, and defamation per se….

As the case proceeded, a controversy arose concerning Internet posts Ms. Luo purportedly made from her cell phone. In an unrelated California criminal proceeding, the Los Angeles County Sheriff’s Department (LASD) had obtained a forensic image of Ms. Luo’s cell phone. Seeking information to bolster his defense, Mr. Wang subpoenaed this data from the LASD. Ms. Luo filed motions to quash the subpoena, but the district court denied them.

On July 12, 2022, after her attorney withdrew from the case, the magistrate judge ordered Ms. Luo to provide her current contact information. On September 14, 2022, he reiterated that order. Nearly two weeks later, however, the magistrate judge concluded that Ms. Luo had refused to comply with the order, causing “considerable inconvenience to the Court.”

On August 24, 2022, the magistrate judge held a discovery conference. At the conference, Mr. Wang’s counsel outlined various court orders that Ms. Luo had violated, including orders requiring her to provide a financial affidavit, amend her request for damages, and provide an unredacted letter from a witness. During the conference, both Mr. Wang’s counsel and the magistrate judge questioned Ms. Luo on the record. The magistrate judge later characterized her responses as “evasive at best and deceiving or untrue at worst.”

At the conference, the parties also discussed Ms. Luo’s deposition. Mr. Wang’s counsel requested an in-person deposition. Ms. Luo did not object to being deposed in the federal courthouse in Denver. The magistrate judge later explained that he adopted the “unusual procedure” of taking her deposition at the courthouse because of Ms. Luo’s “contumacious behavior in this lawsuit.” …

During the deposition, Mr. Wang’s counsel asked the magistrate judge to come into the courtroom to address an issue. He explained that Ms. Luo had refused to answer questions concerning her travel to the United States, specifically about “the legal basis for her entry into the United States.” The magistrate judge ordered her to answer, but he also advised her of certain legal options she might have concerning these questions.

After the advisement, Ms. Luo declined (1) to invoke her Fifth Amendment right to refuse to answer or (2) to answer subject to certain procedural protections the magistrate judge described. The magistrate judge then advised Ms. Luo that “[i]f she persisted in disobeying my Order to answer the questions, this could be construed as a contempt of court, and the sanction could include, without limitation, dismissal of her lawsuit with prejudice.” She responded that she understood, but she still refused to answer on grounds of “relevance.”

The magistrate judge issued a recommendation that the action be dismissed as a sanction for Ms. Luo’s discovery-related abuses, including and especially her disobedience of his direct orders to answer questions during her deposition, which he found constituted direct contempt….

Rule 37(b) of the Federal Rules of Civil Procedure authorizes the district court to sanction a party for failure to cooperate with discovery….

Ms. Luo challenges the district court’s reliance on her refusal to answer questions about her travel to the United States. She characterizes these questions as irrelevant and abusive. But the district court found the questions were sufficiently relevant to require her to answer them.

Notably, this case presents issues concerning Mr. Wang’s invitation to Ms. Luo to come to the United States, her failure to leave the country after Mr. Wang bought her a plane ticket, her alleged police report concerning the loss of her passport, and her alleged filing of a fraudulent travel insurance claim on the ticket Ms. Wang bought for her. As the district court determined, the allegations of Ms. Luo’s complaint “relate to her travels to and in the United States.” This distinguishes cases she cites, in which parties sought information concerning immigration status that lacked relevance to a claim or defense or that would prejudice the plaintiff’s assertion of statutory rights. In addition, the magistrate judge offered Ms. Luo procedures she could follow to protect her rights in connection with the questions, but she declined to pursue those procedures….

Dismissal is available as a sanction in cases of “willfulness, bad faith, or some fault of [the party].” The district court can therefore impose dismissal when a party willfully disobeys orders. Before imposing dismissal as a sanction, however, a district court should ordinarily evaluate “(1) the degree of actual prejudice to the [other party]; (2) the amount of interference with the judicial process; … (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.”

The magistrate judge analyzed these factors, and the district court adopted his analysis. Having reviewed Ms. Luo’s challenges to the district court’s reasoning, we conclude she fails to show the court abused its discretion in dismissing the action as a sanction for her discovery violations….

Katayoun Donnelly represents Wang. Note that I was also involved in the case, though solely to unseal documents that had originally been sealed, and then on appeal to oppose Luo’s claim of pseudonymity.

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