Wednesday, November 26, 2025
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Ninth Circuit:
Company’s Use of Fake Evidence, Concealing Documents, Justified Terminating Sanction
By a MetNews Staff Writer
Misconduct on the part of a company that accused L’Oreal of misappropriating its trade secret on a hair-coloring system, including fabrication and destruction of evidence, was so severe as to warrant the terminating sanction imposed by the District Court, the Ninth U.S. Circuit Court of Appeals held yesterday.
A three-judge panel—comprised of Circuit Judges Ryan D. Nelson and Lawrence VanDyke, joined by Douglas Russell Cole, a District Court judge for the Southern District of Ohio, sitting by designation—affirmed, in a memorandum opinion, the March 29. 2024 decision by District Court Judge Christina A. Snyder to jettison the lawsuit filed by Metricolor LLC.
Among the misconduct alleged was that Metricolor’s expert, Kevin Cohen, imaged the computer of the company’s president, Salvadore D’Amico, in October 2021 and, with the content preserved, deleted about 50,000 files before L’Oreal could undertake its own imaging, in the course of discovery, in December of that year.
In arguing for imposition of terminating sanctions, L’Oreal asserted:
“Metricolor’s tactics reflect a complete inversion of the discovery and litigation process. Normally, arguments in a case are built on a bedrock of facts and arguments must bend to any new information. Here, Metricolor shows no compunction to altering evidence or selectively disclosing facts to meet its litigation goals. This is exactly the intentional behavior that warrants terminating and monetary sanctions.”
Snyder’s Ruling
Snyder said in her ruling:
“The Court finds that plaintiff’s misconduct was the result of ‘willfulness, bad faith, and fault.’…[P]rolonged discovery disputes and multiple forensic reviews have revealed that plaintiff (particularly Sal D’Amico) has repeatedly fabricated, destroyed, and withheld evidence in this action.”
She went on to say:
“The forensic review of the Cohen Image also indicates that plaintiff attempted to destroy relevant evidence (and was likely successful). As a threshold matter, plaintiff concealed the existence of the Cohen Image for nearly a year-and-a-half after its creation. Were it not for the eventual discovery of the Cohen Image, defendants may never have discovered plaintiff’s attempted deletion of evidence.”
The judge added:
“Here, plaintiffs misconduct has cast doubt on the veracity and integrity of all evidence in this case. The fabrication of significant documents calls into question whether other documents are also real or fake. More significantly, the forensic expert has noted that it is ‘more likely than not [that] other files were deleted but overwritten before the Cohen Image was taken, and that those permanently deleted files would include information relevant to the case.’…
“Given the seventy and willfulness of plaintiffs conduct, dismissal with prejudice is the only appropriate sanction.”
Ninth Circuit Opinion
The Ninth Circuit said yesterday:
“Given the sheer volume of Metricolor’s misconduct in the record—and Metricolor’s unimpressive excuses both below and on appeal—the district court’s conclusion that Metricolor’s misconduct resulted from ‘willfulness, bad faith, and fault’ was not clearly erroneous.”
It declared that “Metricolor’s arguments to the contrary are either forfeited or wholly unpersuasive.”
The judges wrote that “[w]hether under Rule 37, its inherent powers, or both, the district court did not abuse its discretion by imposing terminating sanctions.”
The case is Metricolor LLC v. L Oreal USA, Inc., 24-3747.
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