by Julia Romero Peter, Esq.
In EEOC v. Spitzer Management, Inc., et al., Northern District of Ohio Case No. 1:06-cv-02337, the court declared a mistrial and levied sanctions against Defendants when at trial it became known that Defendants failed to produce a large amount of responsive material during the six years prior to trial commencement and produced trial exhibits stripped of important information. The court granted Plaintiffs a hefty sanctions award of more than $300,000 in attorneys’ fees. Plaintiffs’ counsel remarked, “It is very unusual to uncover the type of discovery abuses by the defendants in this case. And the award of attorneys’ fees as a sanction – particularly of this size – is rarer still.”
The court stated, “The inability of [Defendants’] counsel and the Spitzer corporate entities to comply with their discovery obligations has effectively set this case back to its starting point. As a result, trial proceedings and for that matter, motion practice was rendered largely meaningless. Plaintiffs must now engage in new discovery, again with no guarantee that all documents have been produced . . . .” The court also stated that Defendants and their attorneys will have to pay the cost of all future discovery.
The underlying case involves an EEOC lawsuit filed in 2006 on behalf of Plaintiffs Dean Okafor and Hakim Nurridim. Plaintiffs asserted that Defendants subjected them to racial slurs and retaliated for the discrimination charges they filed with the EEOC.
The sanctionable conduct here involved Defendants withholding entire and portions of personnel files. Furthermore, Defendants failed to produce the notes written by attorneys charged with investigating the discrimination claims. Instead, in one instance, Defendants produced undated typed transcriptions of the notes. Moreover, they removed the facsimile headers on these notes when they submitted them as trial exhibits. Upon this discovery, the court ordered Defendants to produce originals of all of the documents Defendants had produced.
Upon review, Plaintiffs pointed out that the typed transcriptions differed from the original notes. In one instance, the transcribed statement of a witness stated that he had worked for one of Defendants’ employees Jim Dombrowski and had “never heard a racist comment from him.” But the handwritten notes showed that this witness had observed Dombrowski page one of the plaintiffs with a “Nairobi accent”; and the attorney had annotated “BAD for US” on that statement.
The court found most egregious Defendants’ failure to disclose the notes made by their General Counsel in his investigation of the discrimination complaints. The court found that “withholding . . . [his] notes clearly resulted in substantial prejudice to all the plaintiffs . . . .”
The court noted, “Defendants’ in-trial production resulted in numerous documents being produced that had never been previously produced in more than six years of litigation. Of course, simple neglect would be the kindest interpretation . . . . In reality, in less than 24 hours following the Court’s demand to produce documents, Defendants were suddenly able to locate and produce documents directly responsive to years-old discovery requests.”