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.

In litigation, social media has become a very hot issue. Many parties think they can obtain that final, critical piece of evidence from social media. One example is Facebook. Many employers involved in a lawsuit request the employee’s Facebook posts for a certain time period. The rationale is that a victim of discrimination cannot legitimately claim to be depressed if he posts pictures of himself drinking a cool one at the local pub. Or, some defendants will argue, if the plaintiff posts something about being upset with his family or pet dog, then the employer can use that post to argue he was upset about things other than being fired.

Isiah Lester was involved in a  wreck when a truck owned by Allied Concrete Company swerved into his lane and inflicted multiple injuries to him. The collision killed his wife. Mr. Lester sued. Trial was held and Isiah Lester was awarded $6.2 million. His wife’s parents were awarded money, as well. Sometime after the collision but before trial, Mr. Lester posted a picture of himself on Facebook. In the picture, he is wearing a shirt saying, “I love hot moms” and drinking a beer.

Later, after trial, the defendant apparently learned about Mr. Lester’s Facebook account. The defendant, Allied Concrete Company, sued Mr. Lester and his lawyer for among other things, spoliation of evidence. The next day, the plaintiff’s lawyer told his paralegal to tell Mr. Lester to “clean up” his Facebook page. The paralegal emailed the Mr. Lester, asked him about the picture, and told him to delete other pictures. The plaintiff avoided producing any information about the Facebook account. At Mr. Lester’s deposition, he was evasive. Facebook was still new in 2010 and 2011. Perhaps, they thought they could get away with trying to hide the account.

When the defendant pressed for the Facebook postings, the lawyer at first claimed the Facebook account did not exist. Mr. Lester deleted the account. Later, he re-activated the account, but did delete the pictures. The defendant subpoenaed the Facebook account records and eventually obtained all the pictures. The lawyer did not list the email to his paralegal in the privilege log. It looked like he was trying to hide that email from the Defendant. But, in the end, it was also uncovered.

The defendant sought sanctions. The court found that the plaintiff’s lawyer had intentionally omitted his paralegal’s email from the privilege log. The lawyer tried to blame the omission on the paralegal. The court found the plaintiff:

  • spoliated evidence by deleting his Facebook pictures,
  • tried to mislead the defendant by deactivating his Facebook account, and
  • lied in his deposition about deactivating his Facebook account.

The court sanctioned the plaintiff in the amount of $542,000 and his lawyer in the amount of $180,000. The award was tied to the defendant’s legal costs in pursing this information. The court referred the lawyer to the state bar for ethical violations. The court also referred the plaintiff to the prosecutor for his perjury in a civil matter.

This was the first case to sanction a party for trying to hide social media evidence. See the decision in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) here. The plaintiff and his lawyer went to a lot of trouble to hide the words of one t-shirt. It may well have turned out that he could have explained that t-shirt to the jury and assured them he was suffering emotionally when he drank that beer. Perhaps, that was his first social occasion since the accident. We will never know the full story. But, he and his lawyer made it much worse than it had to be.

Most lawyers avoid discovery sanctions like the plague. Yet, some parties accept the risk. One recent sanctions award amounted to $2.7 million. In a lawsuit entitled Goodyear Tire & Rubber Co. v. Haeger, the U.S. Supreme Court heard an appeal regarding that very lag sanction award. Justice Elena Kagan ruled in a unanimous opinion that the amount was too large. It exceeds the fees incurred by the wronged party due to Goodyear’s discovery abuse.

The parties had reached an agreement to settle the lawsuit when the plaintiffs learned that Goodyear had failed to produce the results of a tire test. The Arizona judge awarded sanctions based on the legal fees incurred since the date when the defendant failed to produce the requested information. The Supreme Court court, however, said that was error. The amount of the fees should be based on fees incurred due to the discovery abuse. The higher court required a “But for” standard that looks at the expenses incurred due to the discovery abuse. The court asks what would have been incurred but for the discovery abuse.

The plaintiffs responded that $2 million in attorney fees were incurred after the abuse was discovered. The parties would have settled otherwise, they argued. But, the Supreme Court noted the district court awarded $2 million in fees if the $2.7 million was overturned, indicating the district court did not believe the $2.7 million was directly due to the discovery abuse. The federal district court would have to reconsider its $2 million contingent award in night of the Supreme Court ruling. See ABA Bar Journal report.

One recurring issue in employment cases is the breadth of discovery that is allowable. Many employers want to seek the records of the plaintiff’s former jobs. That means the employer can possibly rummage around the employee’s former jobs and see if there is any dirt that will help the employer. Unfortunately, some plaintiff attorneys do not resist those subpoenas. But, it is important to do so. No one should give up total privacy simply because s/he filed a civil rights lawsuit.

In Henry v. Morgan’s Hotel Group, No. 15-CV-1789 (S.D. N.Y. 1/25/2016), the federal Judge agreed that an employer should not have unfettered access to a plaintiff’s entire work history. The employer, as many employers do, submitted overboard requests when it asked for records from three former employers. Morgan’s Hotel Group sought all records related to Phillip Henry, the plaintiff. The court felt that simply requesting “all” records was itself a basis to quash the subpoenas.

[That makes sense. “All” records would include financial and medical related records. How could those sorts of records possibly be relevant to a lawsuit against a new employer alleging discrimination?]

The subpoenas were based on the old standard for discovery, whether the records are reasonably calculated to lead to admissible evidence. The new standard focuses on documents that are relevant in proportion to the importance of the issues, the resources of the parties, and the burden or expense of the discovery. The employer justified its request on the grounds that Mr. Henry claimed to be an “exceptional” waiter based in part on his experience at these three prior restaurants. It wanted to test his claim and see if it was true. But, as the court noted, whether he was exceptional or not, that would have no bearing on any discrimination at his job where he was fired. And, the employer offered no suspicion or basis for its belief that Mr. Henry had exaggerated or lied about his qualifications. So, found the court, the discovery was not proportional to the asserteded need.

The employer also failed to send advance notice to the plaintiff’s lawyer before sending the subpoenas to former employers. That lack of notice violated federal rules. At least one employer had already produced some records before the plaintiff l lawyer could submit her motion to quash.

To make things worse, the subpoenas were served on the former employers and the plaintiff’s lawyer on Christmas Eve, a “sharp” tactic noted by the court. See decision here.

Many, if not all discrimination cases, require that the employee compare him/herself to other employees. It is simply the nature of employment lawsuits that a victim alleges s/he was treated differently than others. To make that allegation, the employee must seek documents and records concerning his/her fellow employees. So, it is no surprise that Coach Bev Kearney was successful in her efforts to obtain records concerning other coaches and employees at the University of Texas. See San Antonio Express News report. Those records will include those of Coach Major Applewhite. I previously wrote about Coach Kearney’s lawsuit here

UT opposed the motion. But, they surely knew they would lose. Yes, records from other employees might include sensitive information. But, both sides usually agree to a "protective order" which makes it clear that such records can only be used for purposes of the lawsuit. In perhaps all of my discrimination lawsuits, we ask for records of other employees who are accused of the same offense as my client. Often, the employer will agree to produce those records without the necessity of a court order, because they know most, if not all courts will order the production of such records. That UT might oppose a motion they would surely lose suggests this is 1) a high profile case, and 2) this is a very high profile case. 

I guess the only real surprise in Coach Kearney’s case is that the Express News seems a bit surprised UT was ordered to produce these records…..

I previously wrote about Judge Lynn Hughes of the Southern District of Texas here and here.  Again, he has ordered no discovery in a lawsuit that could not function without discovery.  And, again, he has been overruled by the Fifth Circuit Court of Appeals.  See opinion here.  The Fifth Circuit seems to be very familiar with Judge Hughes’ "extra-legal" orders.  But, they seem unable to deal with his strange orders, other than overruling them. 

Some time back, I discussed a case where the defendant in a personal injury lawsyit was trying to obtain continued discovery of a plaintiff’s Facebook and My Space entries.  See my prior post.  The Houston trial judge had ruled that after the plaintiff changed her settings to private, the defendant could no longer obtain the entries.  The defendant then sought a writ of mandamus to force the trial judge to rule differently.  

The Texas Supreme Court dismissed the writ on Sept. 9, 2011, meaning they reject the appeal for an unspecified reason.  See Texas Supreme Court site.  So, the trial judge’s ruling stands: a party cannot continue to seek social media entries after the party changes her settings to privacy. 

In a lawsuit in Houston, the defendant has filed a writ with the Texas Supreme Court seeking access to a plaintff’s Facebook and MySpace entries.  The defendant wants the entries because they represent a "compilation" of who the plaintiff is.  See petition for writ of mandamus.   In Re Magellan Holdings, LP And Magellan Midstream Holdings, LLC,  No. 01-11-00373-CV. 

The defendant was allowed discovery regarding entries which occurred prior to the plaintiff restricting access.  But, once the plaintiff restricted access to friends, the trial judge refused discovery from that point forward.  Writ of mandamus is the state equivalent of an interlocutory appeal.  So, it appears that the defendant sees the Facebook and MySpace discovery as critical to its case.   The Houston court of appeals affirmed the trial judge’s refusal to allow the discovery.  This may be the Texas Supreme Court’s first encounter with social media discovery. 

The plaintiff was injured in an accident such that he cannot care for himself.  The defendant’s argument is that if the plaintiff can maintain wall postings on Facebook and elsewhere, then he is not as mentally incapacitated as he claims.  So far, the few cases that have addressed the issue generally prohibit discovery without clear relevance to some specific issue.  See my prior post.  A "fishing expedition" type request will not suffice to gain access.  But, as described in my prior post, if a party can show emotional state is truly in issue, or as here where mental state is truly in issue, then the opposing party will probably gain access to your "private" Facebook information. 

Discrimination lawsuits, like many lawsuits, rely heavily on discovery.  Discovery is the process by which we seek the other sides’ evidence.  In employment cases, the discovery process takes on added importance because the employer has most of the key evidence.  The employer, for example, posses personnel records regarding other employee who were terminated for similar offenses, regarding personnel policies, and so on.  So, adequate discovery is critical to any employment lawsuit.  

A Houston lawyer failed to cooperate regarding discovery recently and eventually, his client’s case was dismissed.  See Worrell v. Houston Can! Academy, No. 10-20102 (5th Cir. 5/5/2011).  See opinion.  The plaintiff’s lawyer in a discrimination case completely failed to provide initial disclosures.  Melvin Houston also failed to respond to written discovery requests.  The lawyer then failed to respond to the motion to compel filed by the defense lawyer.  

When the lawyer did finally respond to the discovery, he did not respond adequately.  For example, in listing names of potential witnesses, we must provide address and phone numbers, if we have them.  But, Mr. Houston simply listed the address and the phone number of the defense lawyer for each witness, even though most of the witnesses no longer worked for the employer.  Thus, he included the defense lawyer’s phone and address for each witness – apparently because Mr. Houston presumed the defense lawyer controlled each witness.  But, these witnesses no longer worked for the employer.  

Mr. Houston also failed to provide a calculation for the damages he was claiming.  

The defense charged the plaintiff with numerous other omissions, but those are the omissions cited by the district court and later relied on by the Fifth Circuit.  The appellate court would note dryly on appeal that the witnesses did not reside at the defense lawyer’s office. 

The plaintiff lawyer defended his tardiness in responding at all on the grounds that Hurricane Ike had cut off his power for some period of time.  But, the defense lawyer produced an email he received from Mr. Houston fore that time period – suggesting he had power much sooner than he claimed.  

The court provided ample opportunity for the plaintiff to get her act together.  The court stayed the proceedings at one point for 60 days after a show cause hearing.  The court required the plaintiff to amend her responses within the 60 days.  When the plaintiff still did not comply with the Court’s orders, it dismissed the case.  Dismissal is the "death penalty" of sanctions.  The Court noted the response to Interrogatories still lacked contact information for the listed witnesses and lacked calculation for her claimed damages.  The court also noted the Plaintiff’s lack of a response regarding the plaintiff’s emotional suffering and Plaintiff’s failure to state whether her leaving her other employers was voluntary or not.  And, her amended response to the request for production was actually submitted one day after the 60 day deadline.  The plaintiff also failed to explain why she waited one month to ask that the case be re-opened.  

And, of course, even before getting to the "death penalty," the Court had ordered the plaintiff to pay the defendant’s expenses in filing motions to compel a couple of times.  So, yes, the Court used a progressive system, giving the plaintiff opportunity to correct her deficiencies.  Ultimately, the plaintiff simply did not respond.

As I have explained to clients many times, the real battle is often about discovery.  It is very important to craft discovery responses as part of an overall strategy.  It is not enough to simply respond to discovery.  One must respond in a way that displays confidence in your case. and in a way that displays no weakness.  The lawyer must work very closely with the client to ensure the very best responses are made.  The lawyer cannot win without the client and the client certainly needs the lawyer.    

Many of the above errors sound like they are lawyer driven, but we will never know the full story.  No one, no one should ever have their case dismissed due to inadequate discovery responses.  

The first thing one defense lawyer does when he is hired for an employment case is check the employee’s Facebook account.  See blog post.  Eric Meyer, a defense lawyer, looks for references to the work place or the employer.  He prints out any pictures.  He looks for any information that refutes or refers to any allegation in the lawsuit or complaint.  According to one case, EEOC v. Simply Storage Management, it does not matter whether the employee has opted for privacy or not.  An employer would still have the right to request such information as part of the discovery process.

Mr. Meyer does not mention that Simply Storage concerned two female plaintiffs who claimed post-traumatic stress disorder.  See my prior post on that case.  So, Simply Storage should not apply to the vast majority of cases in which the plaintiff seeks nothing more than “garden variety emotional distress.”  But, the case does suggest that FB entries will be discoverable in some cases.

Mr. Meyer says he will issue a subpoena if necessary.  He will send a spoliation letter – meaning a letter which warns the employee from deleting anything on FB until the defense can obtain copies. The defense lawyer even says he will review the friends’ list to see who might have access to your FB website.  He appears to suggest he would consider asking current employees to access your FB wall and report what they find.

There was a time when the employer had in its possession all the relevant evidence.  Now, the employee may have some critical evidence, as well.  That does place some responsibility upon the plaintiff employee to safeguard potential evidence.