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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-076

Filing Date: April 28, 2014

Docket No. 31,782

STATE OF NEW MEXICO, ex rel. 

GARY KING, ATTORNEY GENERAL,

Plaintiff-Appellant,

v.

ADVANTAGEOUS COMMUNITY

SERVICES, LLC, a New Mexico

limited liability company,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 

Valerie A. Huling, District Judge

Gary K. King, Attorney General

Santa Fe, NM 

Amy Landau, Assistant Attorney General

Albuquerque, NM

for Appellant

Lewis and Roca LLP

Jason C. Bousliman

Albuquerque, NM

for Appellee

OPINION

VIGIL, Judge.

{1} The district court dismissed the State’s medicaid fraud claims against Defendant

Advantageous Community Services, LLC, doing business as Imagine, LLC, (Imagine) after

the State’s investigator procured a false and fictitious document relating to a central issue
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in the case. The investigator provided the document to the State’s lawyer without disclosing

that the document was false, and the lawyer then used it in a deposition of Imagine’s owner

and corporate representative. Concluding that the district court did not abuse its discretion,

we affirm.

I. BACKGROUND

{2} Imagine contracts with individual caregivers to provide home-based healthcare

services to Medicaid recipients through the Medicaid Developmental Disabilities Waiver

Program. New Mexico Department of Health (DOH) regulations require home-based

healthcare providers like Imagine to submit criminal history screening applications to DOH

for each of its caregivers. Once the criminal application is submitted, DOH then conducts

a state and nationwide criminal background check. Upon completion of the background

check, DOH sends a “clearance letter” stating whether a caregiver has any reported

disqualifying convictions. In its suit the State alleges that Imagine knowingly submitted bills

for services provided by six caregivers whose criminal histories did not meet the screening

requirements and that, therefore, Imagine violated the the Medicaid Fraud Act, NMSA 1978,

§§ 30-44-1 to -8 (1989, as amended through 2004). According to the State, the Medicaid

payments Imagine received from the State and paid to the six caregivers constituted

overpayments, which the State had a right to recoup as damages, in addition to civil

penalties.

{3} The State compared the date on the clearance letter for each of the six caregivers to

the date each caregiver was hired to support its claims that caregivers were providing

services that were billed to Medicaid before DOH confirmed that they had a clear criminal

history. Thus, the clearance letter issued for each caregiver is critical to the State’s theory

of liability. On the other hand, Imagine contends that DOH regulations permit caregivers to

work under conditional supervised employment while DOH conducts the screening and that

the regulations only require that criminal history screening applications be submitted for

each caregiver within the first twenty days of employment. Therefore, according to Imagine,

the dates Imagine submitted the criminal history screening applications and/or whether

applications were submitted at all would have been relevant to whether any violations

occurred, not the date on the clearance letters marking completion of the screening process.

{4} The Assistant Attorney General (the AAG) prosecuting the case asked an investigator

for the Attorney General’s Office (the investigator) working in the medicaid fraud unit to

prepare packets of documents relating to each of the six caregivers to be used at the

deposition of Dr. Arminder Kaur, the owner and corporate representative of Imagine. She

specifically asked the investigator to include a copy of the clearance letter from DOH for

each caregiver to be included in the packet. However, the investigator was unable to locate

copies of the actual clearance letters Imagine had previously produced for two of the

caregivers, so he called Walter Rodas at DOH to see if DOH had copies. Mr. Rodas told the

investigator that DOH did not keep hard copies of the letters on file, so the investigator

asked Mr. Rodas to “reprint” copies of the 2006 clearance letters from its electronic data
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base.

{5} Mr. Rodas told the investigator that it would not be possible to reprint accurate

copies of the letters because the computer system had updated several fields in the clearance

letter template. The investigator nevertheless told Mr. Rodas to go ahead and print the letters

with the updated data. Mr. Rodas faxed the letters to the investigator with a cover sheet

stating,

Per your request, attached find copies of the clearance letters for [the two

caregivers]. These letter[s] were issued for Imagine back in 2006. In addition

to the discrepancies I mentioned to you already over the phone, our letter

template pulls information current on our system. That is why the letters are

issued and addressed to Melissa McCue, but she may have not been the

contact person at Imagine back then. Also, the letters are signed by Gil

Mendoza, but he was not the manager of this department in 2006; nor was

Ms. Martinez the governor at that time either. Unfortunately, we do not have

access to the original letters any longer and this is the best I can do to assist

you from our computer records.

The investigator put the false letter in the packet for each caregiver and delivered the packets

to the AAG. However, he left the fax cover sheet explaining that the letters were not

authentic copies on his desk, and he did not tell the AAG that he had been unable to locate

copies of the actual clearance letters that were sent to Imagine.

{6} One of the created letters is attached to this Opinion as Appendix 1, and a copy of

the actual clearance letter sent to Imagine in 2006 for the same employee is attached to this

Opinion as Appendix 2. Though the dates of the two letters are the same, and the “Control

No.” for the employee match, the letters are obviously otherwise very different.

{7} At Dr. Kaur’s deposition she testified that, as far as she knew, Imagine was in

compliance with the criminal history screening requirements at the time of the alleged

violations. Her former business partner’s son, Karan Sangha, and former employee, Diane

Nunn, were in charge of ensuring compliance with the criminal history screening

requirements, and they had assured her that Imagine was at all times in compliance. Dr. Kaur

added that Karan Sangha and Diane Nunn later left to form their own home healthcare

business, taking with them the documentary evidence of Imagine’s compliance. After they

left, Melissa McCue, another employee at Imagine, took over the caregiver criminal history

compliance duties. When presented with Exhibit 15 (Appendix 1) and asked why it was

addressed to Melissa McCue in October of 2006, Dr. Kaur’s reaction was surprise. A

clearance letter sent to Imagine in 2006 should have been addressed to Karan Sangha, and

Exhibit 15 also had Imagine’s new office address rather than the address it had in 2006.

{8} Imagine filed a motion for sanctions against the State for using a fabricated document

at the deposition, as well as a motion for summary judgment on the merits. The district court
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held an evidentiary hearing to address the motion for sanctions at which the foregoing facts

were developed. The AAG also answered questions posed by the district court, denying that

she knew the letter was false when she utilized it in the deposition and admitting she did not

observe the discrepancy of the incorrect governor on the letterhead.

{9} The district court then filed detailed findings of fact and conclusions of law. In

pertinent part, the district court made findings of fact that Exhibit 15 is a purported letter

from DOH to Imagine, care of Melissa McCue, but it is a false document, and was created

by the State for this litigation. Specifically, the text of the letter, the addressee, and the

signature line are inaccurate. Further, the district court found, while the investigator was told

that Exhibit 15 is not a true and correct copy of the original document, the investigator did

not disclose that information to the AAG, and the AAG failed to observe the obvious

discrepancy in the document that Susana Martinez was not the Governor in 2006, which

would have alerted her that it could not be an accurate copy of a 2006 document. The district

court added that the investigator knew the document was false and that it was going to be

used at Dr. Kaur’s deposition, but he did not disclose his knowledge to the AAG, who then

attempted to impeach Dr. Kaur with the document. Importantly, the district court also found

that, “[c]onsidering his position as an investigator for the Attorney General’s Office, [the

investigator]’s testimony that he did not believe the information was important is not

credible.”

{10} All of the investigator’s actions were done in the course and scope of his employment

with the Attorney General’s Office of the State of New Mexico. Moreover, the district court

found, “[c]onsidering the immense power of the Attorney General’s Office, the public must

be able to rely on the truth of documents produced in litigation by the Attorney General’s

office, its attorneys and investigators” and that “[a]n investigator allowing an assistant

attorney general to utilize a document known to be false in discovery is an egregious offense

subject to sanctions.”

{11} The district court accordingly concluded as a matter of law that “[d]ismissal of the

Complaint is warranted as a sanction considering the egregious nature of the actions of the

State’s investigator.” The district court also concluded that Imagine’s motion for summary

judgment should be granted. A formal order was entered dismissing the case with prejudice,

and the State appeals. Because we affirm dismissal of the case as a sanction, we do not

discuss the State’s argument that the court erred in granting summary judgment.

II. DISCUSSION

A. Authority of the District Court to Dismiss as a Sanction

{12} Since at least 1939, our courts have asserted an inherent power, independent of any

statute or rule, to regulate the proceedings before them, which includes imposing sanctions

when appropriate. See City of Roswell v. Holmes, 1939-NMSC-062, ¶ 6, 44 N.M. 1, 96 P.2d

701 (“[I]t is an inherent right of the courts and therefore one existing independently of any
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statute to dismiss a suit for failure to prosecute it with diligence.”). This authority stems from

“‘the control necessarily vested in courts to manage their own affairs so as to achieve the

orderly and expeditious disposition of cases.’” Beverly v. Conquistadores, Inc., 1975-

NMCA-070, ¶ 6, 88 N.M. 119, 537 P.2d 1015 (quoting Link v. Wabash R.R. Co., 370 U.S.

626, 630-31 (1962)).

{13} In State ex rel. New Mexico Highway & Transportation Department v. Baca, 1995-

NMSC-033, 120 N.M. 1, 896 P.2d 1148, our Supreme Court declared that “a court’s inherent

power is at the core of judicial authority,” and reaffirmed that courts in New Mexico possess

“inherent power to impose a variety of sanctions on both litigants and attorneys in order to

regulate their docket, promote judicial efficiency, and deter frivolous filings.” Id. ¶¶ 11, 20

(internal quotation marks and citations omitted); see Lujan v. City of Albuquerque, 2003-

NMCA-104, ¶ 10, 134 N.M. 207, 75 P.3d 423 (stating the general proposition that courts

have “authority to dismiss claims with prejudice for a party’s failure to . . . comply with

procedural rules or court orders”). Therefore, our Supreme Court concluded in Baca, a New

Mexico court has inherent authority, independent of any statute or rule, to award attorney

fees “in order to vindicate its judicial authority and compensate the prevailing party for

expenses incurred as a result of frivolous or vexatious litigation.” 1995-NMSC-033, ¶ 12.

{14} Historically, sanctions have been imposed most often in the context of misconduct

associated with discovery. Dismissal of a complaint with prejudice was held to be warranted

when a party willfully refused to obey a direct court order to supply the name of a witness.

Beverly, 1975-NMCA-070, ¶¶ 7, 16. In addition, a default judgment against a party was

upheld when a party failed to provide discovery “due to the willfulness, bad faith or fault of

the disobedient party.” United Nuclear Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 202,

96 N.M. 155, 629 P.2d 231. In this context, our Supreme Court has declared that

“willfulness” means “any conscious or intentional failure to comply therewith, as

distinguished from accidental or involuntary non-compliance, and no wrongful intent need

be shown to make such a failure willful.” Id. ¶ 203 (alteration, internal quotation marks, and

citations omitted); see Reed v. Furr’s Supermarkets, Inc., 2000-NMCA-091, ¶ 9, 129 N.M.

639, 11 P.3d 603 (discussing the requirements to justify dismissal as an appropriate

sanction); Gonzales v. Surgidev Corp., 1995-NMSC-047, ¶ 31, 120 N.M. 151, 899 P.2d 594

(stating that failure to comply with a court order only provides grounds for dismissal if the

failure was due to willfulness, bad faith, or fault of the disobedient party); Medina v. Found.

Reserve Ins. Co., 1994-NMSC-016, ¶ 6, 117 N.M. 163, 870 P.2d 125 (stating that a finding

of “willfulness” may be based on a “gross indifference to discovery obligations”).

{15} Deception or reliance in fact by the other party is not a prerequisite to dismissal, and

“the ultimate importance of the false or deceptive information” is not a requirement for

dismissal. Medina, 1994-NMSC-016, ¶ 9. In Reed, we applied Medina and concluded that

dismissal as a sanction for discovery abuse does not require: “(1) that the party seeking

dismissal be deceived in fact or that the party relied on the misrepresentations; (2) that the

information misrepresented be critical to preparation for trial; and (3) that dismissal be

preconditioned upon the ultimate importance of the false or deceptive information.” Reed,
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2000-NMCA-091, ¶ 28 (internal quotation marks and citation omitted).

{16} Importantly, our Supreme Court has held that attorney fees may be imposed against

the State when it is a party because other considerations, such as the depletion of public

revenues and the punishment of innocent taxpayers, “must be subordinate to a court’s

authority to control the parties and the litigation before it.” Baca, 1995-NMSC-033, ¶ 25.

Thus, in Harrison v. Board of Regents, we stated, “a court’s inherent authority extends to

all conduct before the court and to all parties appearing before the court, regardless of the

party’s status as a private litigant or as a governmental/public entity.” 2013-NMCA-105,

¶ 16, 311 P.3d 1236, cert. granted, 2013-NMCERT-010, 313 P.3d 251. We therefore

concluded that the district court in that case had inherent authority to impose a noncompensatory, punitive sanction against the board of regents, notwithstanding that it is a

public entity. Id. ¶ 27.

{17} From what we have said, it is apparent that the district court had inherent authority

to dismiss the State’s complaint with prejudice. We now turn to whether the district court

properly did so.

B. Standard of Review

{18} We review a district court’s dismissal of a complaint for engaging in abusive

litigation practices for an abuse of discretion. See id. ¶ 14 (“We generally review a district

court’s imposition of sanctions under its inherent power for an abuse of discretion.); Reed,

2000-NMCA-091, ¶ 10 (stating that we review dismissal of a complaint as a sanction for an

abuse of discretion); see also Baca, 1995-NMSC-033, ¶¶ 11-12 (applying an abuse of

discretion standard to review a district court’s imposition of sanctions under its inherent

power); State v. Candelaria, 2008-NMCA-120, ¶ 12, 144 N.M. 797, 192 P.3d 792

(reviewing the sanction of dismissal of a criminal case by a trial court under its inherent

power for an abuse of discretion).

{19} Under the abuse of discretion standard of review, we do not determine whether we,

as a reviewing court, would have arrived at the same result as the district court. See United

Nuclear Corp., 1980-NMSC-094, ¶ 385; Emerick v. Fenick Indus., Inc., 539 F.2d 1379, 1381

(5th Cir. 1976); see also Candelaria, 2008-NMCA-120, ¶ 12 (stating that appellate review

of trial court’s discretion does not turn on whether the appellate court would have arrived

at the same result). Rather, we only determine “whether the trial court’s decision is without

logic or reason, or clearly unable to be defended.” Enriquez v. Cochran, 1998-NMCA-157,

¶ 20, 126 N.M. 196, 967 P.2d 1136. Moreover, “[b]ecause the trial court’s decision must be

based on its conclusions about a party’s conduct and intent, implicit in the standard of review

is the question of whether the court’s findings and decision are supported by substantial

evidence.” Id.; see Reed, 2000-NMCA-091, ¶¶ 24-25 (stating that in a hearing on a motion

for discovery abuse sanctions, the district court sits as a fact finder). Thus, we review the

evidence, and its inferences, in the light most favorable to the district court’s decision. See

Candelaria, 2008-NMCA-120, ¶ 12.
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The State does not contest the district court’s conclusion of law that the

investigator’s actions were performed in the course and scope of his employment with the

Attorney General’s office.

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C. Analysis

{20} On appeal, the State first contends that the created letters are not “false.” The State

attempts to minimize the obvious differences between the created letters and actual letters

by asserting that the letterhead, addressee, signatory, and body of the letters are not “critical”

fields. According to the State, the “critical” fields on the created letter relate to the caregiver:

the name of the provider, the provider number, and the date of clearance. The State asserts

that these fields remained the same in the 2006 copy and the 2011 “printout,” that the

information in the created letter was independently verifiable by Imagine through the online

registry system, and that none of the updated fields in the letters “contained evidence

relevant to the State’s claims.”

{21} The State also argues that dismissal was an inappropriate sanction because its actions

were not “willful.” The State blames DOH’s failure to keep copies of the 2006 letters and

its computer limitations for its “mistake,” asserting that the criminal history screening

program’s “inherent computer limitations and inability to ‘reprint’ exact copies of the

original two 2006 [criminal history] clearance letters sent to Imagine” caused the

“inadvertent error.” The State asserts that “there was no testimony to support Imagine’s

contentions that [the investigator] intentionally fabricated and/or falsified [the letters]”

blaming his lack of law office experience and training in evidence for causing the

“inadvertent error.”

{22} We reject these arguments as contrary to the findings of fact made by the district

court. The created letters were falsely represented as accurate copies of actual clearance

letters sent to Imagine in 2006. A cursory visual inspection of the documents quickly

discloses that they are not even close to being similar. Arguments about “critical” fields do

not, and cannot, alter the undisputed fact that the State created, presented, and used a false

document at the deposition of Dr. Kaur, the owner and corporate representative of Imagine,

the defendant it was suing.1

 The State fails to appreciate that DOH’s computer system

limitations are not the issue. Rather, the issue is the consequence of the investigator

instructing DOH to create the false documents, and knowing they were false, giving them

to the AAG to use in the deposition without telling the AAG why or how the false document

was created. The immediate consequence to Dr. Kaur was that after she testified in her

deposition that former employees Karan Sangha and Diane Nunn were in charge of criminal

history screening requirements for Imagine in 2006, she was confronted with one of the

created documents and asked why it was addressed to someone else. The State seemingly

overlooks the district court’s explicit finding of fact that the investigator’s testimony that he

thought the information about the falsity of the letters was “not important” was “not

credible,” considering his position as an investigator for the Attorney General’s Office. This
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Other courts confronted with similar circumstances have reached the same result.

In Vargas v. Peltz, 901 F. Supp. 1572, 1574-75, 1581 (S.D. Fl. 1995), the court utilized its

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finding is more than ample support to conclude that his actions were “willful.”

{23} Finally, the State argues that Imagine was not entitled to a dismissal because the false

exhibit “did not prejudice Imagine and/or adversely impact its ability to prepare for, and

present its case at trial.” This argument of a lack of prejudice overlooks our precedent. See

Medina, 1994-NMSC-016, ¶ 9 (stating that deception or reliance in fact by the other party

is not a prerequisite to dismissal, and “the ultimate importance of the false or deceptive

information” is not a requirement for dismissal); Reed, 2000-NMCA-091, ¶ 19-20 (stating

that dismissal as a sanction does not require that the other party be deceived in fact, that the

information be critical to preparation for trial, or that dismissal be conditioned on the

ultimate importance of the false or deceptive information).

{24} Moreover, if we were to accept the State’s argument of no prejudice, a district court

would be powerless to dismiss a case for misconduct during the pretrial discovery phase of

a case. And that is clearly contrary to our well-settled precedent, which we have already

pointed out, allows for sanctions, including dismissal with prejudice, for misconduct in

discovery. Moreover, our Supreme Court has pointed out, “It would be ridiculous to allow

a party who completely thwarts discovery to escape penalty simply because it could not be

proven that other litigants were in fact deceived by such misconduct or actually relied upon

it.” Medina, 1994-NMSC-016, ¶ 9.

{25} Finally, the State’s argument overlooks what took place here. Preservation of the

integrity of the judicial process is crucial to ensuring that our courts can properly perform

their constitutional duty. When conduct perverts the very process used by courts for

ascertaining the truth, the core reason for their very existence evaporates. The constitutional

integrity of our courts demands that no party may fabricate “evidence,” represent it to be

something which it is not, and then use it in connection with a judicial proceeding. When this

occurs, the entire judicial system is “prejudiced,” and dismissal with prejudice is warranted.

See United Nuclear Corp., 1980-NMSC-094, ¶ 397 (stating that the interest protected when

a party has displayed a willful, bad faith approach to discovery is “to preserve the integrity

of the judicial process and the due process rights of the other litigants”); Harrison, 2013-

NMCA-105, ¶ 24 (“The policy behind a district court’s inherent authority is the need to

prevent abusive litigation practice and preserve the integrity of the judicial process.”); Reed,

2000-NMCA-091, ¶ 9 (‘“When a party has displayed a willful, bad faith approach to

discovery, it is not only proper, but imperative, that severe sanctions be imposed to preserve

the integrity of the judicial process and the due process rights of the other litigants.’”

(quoting United Nuclear Corp., 1980-NMSC-094, ¶ 397)); Sandoval v. Martinez, 1989-

NMCA-042, ¶ 21, 109 N.M. 5, 780 P.2d 1152 (“[A] false response to a discovery request,

unlike other violations of the discovery rules, is a clandestine violation” and that “[i]t is not

enough to say that such a party will gain no advantage if the lie is uncovered.”).2

 Such
“firmly established” inherent power to dismiss the plaintiff’s sexual harassment claim

against the defendant when she produced panties to corroborate her substantive claim, and

it was learned they were not even manufactured at the time of the alleged harassment. In

doing so, the court referred to and relied upon Chambers v. NASCO, Inc., 501 U.S. 32, 46-48

(1991) (stating that the inherent power of federal courts to impose sanctions extends to a full

range of litigation abuses). See Pope v. Fed. Express Corp., 138 F.R.D. 675, 677, 683 (W.D.

Mo.1990), aff’d in part, 974 F.2d 982 (8th Cir. 1992) (stating that the plaintiff's action for

sexual harassment was dismissed where the plaintiff manufactured an alleged note

containing improper remarks from her supervisor); Aoude v. Mobil Oil Corp., 892 F.2d 1115,

1118 (1st Cir. 1989) (stating that the cause of action was dismissed for “fraud on the court”

where the plaintiff attached a bogus agreement to the complaint); TeleVideo Sys., Inc. v.

Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (stating that a default was

entered where the defendant engaged in an elaborate scheme involving perjury designed to

willfully deceive the court); Sun World, Inc. v. Lizarazu Olivarria, 144 F.R.D. 384, 389-90

(E.D. Cal. 1992) (stating that default judgment was appropriate where the plaintiff submitted

a false document and committed perjury in furtherance of fraud); Eppes v. Snowden, 656 F.

Supp. 1267, 1279 (E.D. Ky. 1986) (stating that the defendant’s answer and counterclaim

were stricken where the defendant committed “fraud on the court” by producing backdated

letters). 

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misconduct is so egregious that even a single instance warrants dismissal. Beverly, 1975-

NMCA-070, ¶ 15 (“The fact that persistent misconduct provides the basis for dismissal does

not mean that one instance of misconduct may not be sufficiently extreme to warrant

dismissal.”).

{26} We acknowledge that dismissal with prejudice is a severe sanction. However, the

district court was presented with severe misconduct, prejudicial to the administration of

justice. The circumstances are ironic in that the State was prosecuting a claim of fraud using

created, false documents to do so. Under the circumstances, we cannot conclude that the

district court abused its discretion in imposing the sanction of dismissal with prejudice.

CONCLUSION

{27} The order of the district court dismissing the State’s complaint with prejudice is

affirmed.

{28} IT IS SO ORDERED.

____________________________________

MICHAEL E. VIGIL, Judge

I CONCUR:
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____________________________________

LINDA M. VANZI, Judge

MICHAEL D. BUSTAMANTE (specially concurring).

Bustamante, Judge (specially concurring).

{29} I concur in the Majority Opinion and most of its rationale. I agree, for example, that

the State should bear the consequences of the remarkably obtuse actions of its investigator

in not informing the attorney in the case that the letters he included in the package were not

exact duplicates of the letters issued in 2006. The State’s arguments trying to minimize the

investigator’s fault for what he did fly in the face of the record and the district court’s

finding of fact.

{30} I write separately only because the Majority Opinion does not adequately address the

State’s argument that dismissal is too harsh a sanction absent a showing of prejudice to

Imagine. The Majority Opinion provides a partial response in ¶ 23, citing Medina and Reed

for the proposition that actual deception and reliance need not be demonstrated in order to

affirm dismissal as a sanction. I agree with the proposition, but the question of prejudice

here makes the outcome a close thing and in my view merits more detailed scrutiny. The

notions of actual deception and reliance are relevant to the question of prejudice, but do not

necessarily displace the concerns inherent in the prejudice analysis. Reed, after all, noted

that “[n]onetheless, prejudice may be a factor for the district court to consider when

evaluating the propriety of dismissal for discovery abuse.” Reed, 2000-NMCA-091, ¶ 28.

Reed also noted that “the non-deceiving party must show that the misrepresentations were

significant to the discovery process.” Id. ¶ 29. I also believe that consideration of prejudice

is the better practice in cases such as this because it prompts a broader review of the

circumstances surrounding the events and the district court’s decision. This broader review

would be of aid in assessing whether the offending party’s acts suffice to meet the level of

extraordinariness we look for when the ultimate sanction of dismissal has been imposed. It

would seem particularly appropriate in cases such as this where a single incident led to the

sanction.

{31} The State relies heavily on criminal cases discussing appropriate considerations for

sanctions when the prosecutor has lost, destroyed, or withheld evidence. See State v.

Harper, 2011-NMSC-044, ¶ 19, 150 N.M. 745, 266 P.3d 25; State v. Bartlett, 1990-NMCA024, ¶ 4, 109 N.M. 679, 789 P.2d 627. These cases are not helpful here if only because of

the very different considerations inherent in the criminal law.

{32} The State also relies on a civil prelitigation spoliation case which makes clear that

prejudice to the opposing party should be considered when evaluating whether dismissal as

a sanction is warranted. See Rest. Mgmt. Co. v. Kidde-Fenwal, Inc., 1999-NMCA-101, ¶ 13,

127 N.M. 708, 986 P.2d 504. Though this case involved prelitigation destruction of

evidence, its analytical framework was grounded in the inherent authority of the courts to
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regulate their dockets, promote judicial efficiency, and deter frivolous claims. Id. ¶¶ 11, 12.

Thus, the rationale underlying the existence and exercise of inherent powers—the necessity

to be able to command the obedience of litigants and their attorneys in order to protect the

integrity of the litigation process—has been applied to both prelitigation and litigation-based

conduct. As such, consideration of prejudice to the non-offending party is also appropriate

here.

{33} As suggested by Kidde-Fenwal, the State organizes its prejudice argument around

the relevance of the evidence to the cause of action in the case and the effect the “created”

documents might have on Imagine’s ability to prepare and present its case. Id. ¶ 15. As

noted in ¶¶ 2 and 3 of the Majority Opinion, the State and Imagine disagreed about when a

caregiver could be hired and paid. The State maintained that caregivers could not be paid

until they had cleared their criminal background screening. Imagine asserted that caregivers

could be hired and paid pending completion of the screening process. Thus, for the State’s

purpose, the most salient information on the falsely reproduced letters was the identity of the

caregiver and the date the approved screening issued. There is no issue that these “critical

fields”—as the State terms them—were accurate.

{34} Based on the fact that the “critical fields” information was accurate, the State argues

with some force that there could be no effect on Imagine’s defense in any event. The State

also asserts that once the error was discovered it agreed that the false letters would not be

used for any purpose; thus there could be no prejudice shown. Viewed in isolation these

arguments could be persuasive.

{35} But prejudice is not a controlling factor. Courts should also consider the degree of

fault of the offending party. Id. ¶ 14. The district court clearly found great fault in the

actions of the investigator. Courts should balance the degree of fault against the magnitude

of prejudice in designing a sanction. Id. ¶ 17. If the reasonably potential effect of the

offending party’s action on the administration of justice is severe enough, the court can opt

for the severest sanction to deter such conduct by others in the future. Id.

{36} I construe the district court’s decision as a judgment by it that the creation and use

made of the false, recreated letters was simply not to be tolerated. Given the “immense

power” of the Attorney General and its position as the attorney for the State of New Mexico,

I cannot disagree with the district court’s conclusion. I conclude that this is one of those

cases in which the degree of fault can fairly trump a showing of relatively minimal prejudice.

______________________________________

MICHAEL D. BUSTAMANTE, Judge
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