In every civil lawsuit, we have this process known as “discovery.” One side can ask the other side for the evidence or potential evidence it possesses. For the discovery process to work, there must be some minimal level of cooperation between the two sides. That requirement allows some room for unscrupulous lawyers to ignore or manipulate the discovery process. In one discrimination lawsuit in Massachusetts, that is exactly what happened.

The plaintiff’s lawyer ignored the written discovery. He then ignored two notices of deposition. The defense lawyer traveled from Massachusetts to Cleveland to depose the plaintiff, but the neither the witness nor the attorney appeared for the deposition. Only then did the plaintiff lawyer tell his client what he had been doing. In preparing the plaintiff for his deposition, he told him to lie and say he had been told by his lawyer about the two prior deposition settings. Unknown to the lawyer, Steven Jerome Moody, the plaintiff recorded the conversation. The client was offended that he was asked to lie for the lawyer. Someone filed a complaint with the Ohio Bar association.

The Ohio Bar Association suspended Mr. Moody’s license indefinitely. The lawyer claimed he was transitioning from a paper office to paper-less and had missed entering some entries into his cell phone. He said he was “puffing” to bolster his client’s confidence. The bar association and the Ohio Supreme Court did not believe him. Among Mr. Moody’s comments to his client:

  • “She sent me an interrogatory, request for production of documents, I completely ignored her ass for a few months. And I made her file a motion to compel, and then I called her and said, oh, yeah, I’ll get them to you in two weeks. And then I completely ignored her ass again.”
  • “She’s an arrogant bitch, okay?” and, “I made that bitch fly into town” for the missed deposition.
  • “Obviously, you know, you don’t want to discuss that I played a game with her, you know. But that’s basically it.”
  • “She might ask you, do you know that your attorney didn’t send any discovery, do you know that you were supposed to be here on, whatever the—she had one or two dates. Did your attorney tell you that you were supposed to be present for those depositions? Yes.”

Of course, lawyers are expected not to lie. Perhaps, it needs to be said that we also cannot ask our clients to lie for us. See ABA Bar Journal report for more information.

 The better clients come to see me with documents in hand, sometimes boxes and boxes of documents.  This is the client who wants to be prepared, who seeks to have some control over the outcome of a potential lawsuit.  Some, some very few, will come see me with documents they obtained from their employer.  Is it "legal" to have those documents?  It depends.  See one case where the court found the employee unlawfully took documents home.  But, the court indicated a different set of circumstances in which the employee would have been protected for having taken those documents.  

But, see Michael Maslanka’s eventual reaction to a situation in which an employee takes documents home and keeps them: better to simply sue and get them the traditional way.  That is, Mr. Maslanka would say it is better to file suit and then seek the documents in discovery.  He generally represents employers.  The safest course is to always do what your employer tells you to do.  if the employer says do not take documents home, then do not.  But, yes, if the employer has a policy of letting employees take documents home, then it is probably safe to do so.  But, you better be double-darn sure.  Nothing can ruin a good case than to violate some law or employer policy.  If you take something that does not belong to you, then the lawsuit becomes about you, not about the employer.