reply brief, witness tampering motion against access therapies et al

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

RITURAJ SINGH PANWAR, and )

MICHAEL RICHARD )

BAUTISTA AGUSTIN, )

on behalf of themselves )

and all others similarly situated, ) Case No.: 1:12-cv-00619-TWP-TAB

)

) CLASS ACTION

Plaintiffs, )

)

v. )

)

ACCESS THERAPIES, INC.,RN STAFF, INC., )

d/b/a REHABILITY CARE, RAMON VILLEGAS, )

MANUEL GARCIA, and HARVINDER DHANI )

)

Defendants. )

PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF MOTION FOR WITNESS TAMPERING AND DISCOVERY MISCONDUCT SANCTIONS

Plaintiffs Rituraj Panwar and Michael Agustin (Plaintiffs), and all others similarly

situated, through their undersigned attorneys, hereby submit their reply in support of their

Motion for Witness Tampering and Discovery Misconduct Sanctions. Plaintiffs motion

concerns an extreme form of discovery misconduct in which Defendants took affirmative steps

contacting H-1B employees to discourage or prevent compliance with the Courts February 13,

2013 Order (Dkt. No. 87). Only one disputed issue of fact exists between the parties: (a)

whether Defendants instructed employees to ignore the Court-required communication to

employees to produce documents, or (b) whether Defendants (as they claim) instructed

employees that compliance with the request for documents was not required. In either event, the

Defendants conduct constitutes witness tampering. The only plausible explanation as to why

Defendants would contact H-1B employees concerning the Court-ordered request for documents

Case 1:12-cv-00619-TWP-TAB Document 177 Filed 04/21/14 Page 1 of 21 PageID #: 1765

2

was to induce employees not to produce documents. 18 U.S.C. 1512(b)(2)(A). Defendants

actions were successful: 83 of 84 employees who received Mr. Centos e-mail provided no

documents. Defs. Oppn at 17 (Dkt. No. 176); Brown Decl. 6, 10 (Dkt. No. 109). As

Defendants themselves admit, the effort to collect document pursuant to the Courts February 13,

2013 Order failed. Defs. Oppn at 17.

Moreover, since Plaintiffs filed their opening brief, Defendants have engaged in

additional witness tampering, contacting witness Dante Abad and intimidating him in an effort to

influence him into reversing his signed declaration and discourage his participation in this

case. 18 U.S.C. 1512(b)(1). Defendants conduct has been outrageous, has caused Plaintiffs

considerable prejudice, and warrants severe sanctions. Abner v. Scott Mem. Hosp., 634 F.3d 962,

964 (7th Cir. 2011) (Misconduct may exhibit such flagrant contempt for the court and its

process that to allow the offending party to continue to invoke the judicial mechanism for its own

benefit would raise concerns about the integrity and credibility of the civil justice system that

transcend the interests of the parties immediately before the court) (citation omitted).

BACKGROUND

Plaintiffs served their first request for production of documents in this case on June 14,

2012, requesting, inter alia, [d]ocuments relating to communications with H-1B employees.

Report and Recommendation at 2 (Dkt. No. 155), as adopted by Adoption (Dkt. No. 162)

(R&R); Pls. First Req. for Prod. of Documents, Req. No. 8. On October 16, 2012 the Court

ordered Defendants to produce responsive documents by November 27, 2012. See Order (Oct.

16, 2012) (Dkt. No. 60); Order (Nov. 27, 2012) (Dkt. No. 76). Defendants failed to comply. On

February 13, 2013, the Court issued an additional Order placing Defendants counsel in charge

of Defendants discovery efforts. Order (Feb. 13, 2013) (Dkt. No. 87) (February 13, 2013


3

Order); R&R at 6 n.2. That Order required: (1) Defendants attorneys [to] actively coordinate,

supervise, and where possible, help conduct a search and collection of all [responsive]

documents; (2) that Defendants counsel (not Defendants) send an e-mail notice to all current

H-1B workers requesting their production of emails; and (3) that Defendants attorneys shall

follow up with each H-1B employee to supervise the collection of such emails from all current

H-1B employees, and shall promptly produce all non-privileged emails located to Plaintiffs

counsel. Order at 1-2 (Feb. 13, 2013).

Defendants counsel (Mr. Cento) waited until April 26, 2013 to send out the required e-

mail.1 During the interim time period, Defendants held a meeting and, according to Defendants,

instructed their staff to tell employees that responding to Mr. Centos Court-ordered e-mail was

not required. Dhani Afft 8 (Dkt. No. 176-2); Mabesa Afft 5-6 (Dkt. No. 176-1); Garcia

Afft 8 (Dkt. No. 176-3). Defendants admit that they had at least five in-house employees

instruct H-1B employees that responding to Mr. Centos e-mail was not required. Kapoor Afft

5 (Dkt. No. 176-5); Marcos Afft 5 (Dkt. No. 176-10); Mehta Afft 5 (Dkt. No. 176-11);

Bhatnagar Afft 5 (Dkt. No. 176-14); Mabesa Afft 6 (I would have told them that

responding was up to them just as I was instructed to do during the meeting with my

supervisors); Catacata Tr. 15:14-17 (Q: Did you take [Ms. Mabesas] words as meaning that

you did not have to respond to the e-mail? A: Yeah) (Dkt. No. 176-15). Defendants instructed

at least two employees to ignore Mr. Centos e-mail. 2d Abad Decl. 4; Libertino Decl. 8

(Ex. 2). Some current H-1B employees were never sent Mr. Centos e-mail. See Mendoza Decl.

3 (Dkt. No. 112-1); Catacata Tr. 13:21-14:3 (Q: Were you ever asked to produce documents

1 During the interim period, Defendants sent releases to employees during March 2013, as part of

their Signature Campaign an attempt to coerce employees to give up wage rights and discourage their participation in this litigation. See Pls. Supp. Sanctions Brief at 1-2 (Dkt. No. 114).


4

to Access Therapies in connection with this litigation [by an] Access Therapies attorney? A: No,

I have not spoken with an attorney from Access Therapies.). Mr. Cento did not follow-up with

employees to whom he sent his email, in violation of the February 13, 2013 Order. Id.; 2d Abad

Decl. 5 (Ex. 10).

Defendants efforts proved successful. Of the 84 individuals Mr. Cento e-mailed, 83 did

not produce emails. Defs. Oppn at 17; Brown Decl. 6, 10. Defendants produced a total of

16 e-mails from a single employee. Id 10. In Defendants words, the effort to obtain emails

through the request of Defendants counsel had failed. Defs. Brief at 17.

On February 21, 2014, the Court held a phone conference to discuss ongoing discovery

issues. During that conference, Plaintiffs raised their concern that Defendants would contact

witnesses in an effort to influence their testimony. The Court cautioned the parties that any such

contact would be tantamount to witness tampering. On March 17, 2014, in connection of their

Motion for Witness Tampering Sanctions, Plaintiffs submitted the declaration of Dante Abad, a

current Access Therapies employee, confirming that Access Therapies employee Tess Mabesa

had called him and told him to ignore Mr. Centos e-mail. Abad Decl. 7 (Ex. 4). On March

31, 2014, Ramon Villegas, an Access Therapies and RN Staff executive, spoke on the phone

with Mr. Abad regarding his declaration. Mr. Villegas secretly and illegally recorded that

conversation.2 According to the Mr. Villegass attested transcript of the call, Mr. Villegas

2 As Defendants know, Mr. Abad is a resident of Maryland, and he was present in Maryland

during the secretly recorded conversation. The recording, use, and disclosure of the contents of

that recording are felonies under Maryland law subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both. MD Code, Courts and Judicial Proceedings, 10-402(a)-(b). Plaintiffs informed Defendants of this fact in a letter to the Court dated April 7,

2014. (Ex. 11). Nevertheless, Defendants proceeded to include a purported transcript (as

attached to the affidavit of Ramon Villegas) in their opposition brief, thus making it part of the

public record. Because Defendants have made the transcript part of the public record, and


5

initially told Mr. Abad that the Maryland job market was very weak and that he was lucky to

have a job. Recording Tr. at 8-9 (Dkt. No. 176-4). Mr. Villegas then repeatedly asked Mr. Abad

what Ms. Mabesa had told him, suggested that Mr. Abads declaration could not be true, and

repeatedly emphasized the instruction he believed Ms. Mabesa must have given:

What is the right of Tess to tell you not to respond? Even if I told you Dante not

to respond, and the very next minute, you responded then my telling you not to respond does not mean anything. Am I right? What we are telling the lawyer is

that it is possible that Dante misinterpreted what we said. Im sure Tess would have told you is Hey Dante, its up to you to respond or not to respond. Am I right? We know you are always busy. Am I right? Isnt that what Tess told you or is it. Id. at 11.

[W]hat they are emphasizing is that you, Dante, said that Tess told you not to

respond. That is all I want to know did she tell you specifically do not to respond? Or did she tell you Dante, its up to you, its up to you to respond or not to respond. So which is which? Id. at 11.

You have a signed affidavit that was forwarded to us. Our lawyer is mad at us

stating that Tess called Dante Abad and told him not to respond. That is absurd!

We will not say that to anyone Dante. We will tell you that it is up to you to

respond or not to respond. Id. at 12.

The issue that the lawyer is emphasizing to us is that Tess supposedly told you not

to respond to that email. That is it. That is what they are pinning on us and

basically the judge will not like it if we are saying those to our employees. Our

point is Tess did not say that. This is the reason why Manny scolded Tess. She is

being scolded on this and all we need from you Dante is to find out what she told

you. Did she tell you not to respond? Or did she tell you its up to you to respond or not to respond. Id. at 13.

Mr. Abad then informed Mr. Villegas that he had to go because his relative was very sick and

close to death, id. at 14 (Mr. Abad: [My relative] in the hospital is about to die), but Mr.

Villegas continued to question Mr. Abad:

If you want to respond or not to respond. If you are happy with what you see and

how you are treated by the company, then its up to you its your choice not to respond or to respond. If you are not happy with the company, its up to you to

Plaintiffs have not received contrary instructions from the Court, Plaintiffs address the content of

the transcript below.


6

respond or not to respond. That is what we said Dante. That is it. I just want to

clarify that just in case, just in case, you told the lawyer that Tess told you not to

respond. Ok? Dante, thats all. Thank you. Id. at 15.

Mr. Abad was afraid and intimidated by Mr. Villegas unexpected questioning. 2d Abad

Decl. 7. Because he was afraid the Defendants would retaliate against him, Mr. Abad denied

having signed his prior declaration. Id. 7; Recording Tr. at 13 (Mr. Villegas: Did she tell you

not to respond? Or did she tell you its up to you to respond or not respond. Mr. Abad: I did not

say that. Mr. Villegas: So you did not say that. There is no statement from you that Tess told

you not to respond. Dante, hah? I dont understand.). When Mr. Abad determined the true

purpose of Mr. Villegas call, he quickly terminated the conversation. Id. at 13-14 (Mr. Abad:

Why did you call me? Wait a minute.).3

ARGUMENT

Trying improperly to influence a witness is fraud on the court and the opposing party.

Ty Inc. v. Softbellys Inc., 517 F.3d 494, 498 (7th Cir. 2008). Whoever knowingly uses

intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in

misleading conduct toward another person, with intent to (1) influence, delay, or prevent the

testimony of any person in an official proceeding,4 [or] (2) cause or induce any person to

withhold testimony, or withhold a record, document, or other object, from an official

proceeding, commits witness tampering. 18 U.S.C. 1512(b)(1)-(2). Witness tampering

deserves the harshest sanction that the Court can deliver given the seriousness of the matter and

3 Disturbingly, Mr. Villegas responded to Mr. Abad that Manny [Garcia] is asking me to double

check on therapists that were supposedly called by Tess [Mabesa] on that. Id. at 14. Defendants have not revealed which other employees received calls from Mr. Villegas.

4 The term official proceedings means a proceeding before a judge or court of the United

States. 18 U.S.C 1515(a)(1).


7

in order to protect the judicial process. Ramsey v. Broy, No. 08-CV-0290-MJR-DGW, 2010

WL 1251199, *4 (S.D. Ill. Mar. 24 2010).

Defendants argue that Plaintiffs must prove witness tampering with clear and convincing

evidence. But the Supreme Court and Seventh Circuit have indicated this is not so. See Grogan

v. Garner, 498 U.S. 279, 286 (1991) (we presume that [the preponderance-of-the-evidence]

standard is applicable in civil actions between private litigants); Ty Inc., 517 F.3d at 499 (we

are led to doubt that there is any utility in insisting on proof by clear and convincing evidence in

a [witness tampering] case such as this). Even the case Defendants cite calls into to question

Defendants position. Wade v. Soo Line Ry. Corp., 500 F.3d 559, 564 (7th Cir. 2007) (We

doubt that clear and convincing evidence is required to sanction a party with dismissal under

Rule 37) (citing Grogan, 498 U.S. 279) (relied on by Defendants at Defs. Oppn 6 n.1). In any

event, as discussed below, the evidence of Defendants witness tampering is overwhelming,

much of it freely admitted by Defendants, and deserving of severe sanctions.

I. Defendants Communications With H-1B Employees Amounts To Witness Tampering and Discovery Misconduct.

Defendants communications with H-1B employees regarding the Courts February 13,

2013 Order constitutes witness tampering. First, Defendants engaged in a coordinated effort to

subvert the Order by instructing their employees that responding to Mr. Centos e-mail was not

required. Defendants admit that at least five members of their staff instructed H-1B employees

that they were not required to respond to Mr. Centos e-mail.5 Defendants admit that these

instructions were given at the instruction of senior management.6 Defendants admit that the

effort to collect e-mails from H-1B employees failed. Defs Oppn at 17. The only factual

5 Kapoor Afft 5; Marcos Afft 5; Mehta Afft 5; Bhatnagar Afft 5; Mabesa Afft 6.

6 Dhani Afft 8; Mabesa Afft 5-6; Garcia Afft 8.


8

dispute at issue is whether Defendants also instructed some employees to ignore Mr. Centos

e-mail.7 But there is no practical difference between an instruction to ignore Mr. Centos e-

mail, and an instruction that responding was not required. This is especially true in the culture of

fear of retaliation Defendants nurture among their employees.8 As Mr. Villegas stated in his

secretly recorded conversation with Mr. Abad, If you are happy with what you see and how you

are treated by the company, then its up to you its your choice not to respond or to respond. If

you are not happy with the company, its up to you to respond or not respond. Recording Tr. at

7 Defendants attacks on the credibility of Mr. Abad and Ms. Libertino are baseless and warrant

only brief comment. Contrary to Defendants assertions, Defs. Oppn at 6, both Mr. Abad and Ms. Libertino are current employees with no motive to fabricate testimony. Abad Decl. 9 (Ex.

4); Libertino 2013-14 Payroll (Ex. 12). Both were interviewed separately and had no

understanding of the discovery disputes at issue in this case. Both stated, independently, that

Ms. Mabesa told them to ignore Mr. Centos e-mail. 2d Abad Decl. 4 (Those were her exact words); Libertino Decl. 8. And both faced risks that Defendants would retaliate against them for providing declarations. See, e.g., Defs. Marion County Compl. against E. Mendoza (filed 11 days after Plaintiffs filed Mr. Mendozas declaration in this case) (Dkt. No. 120-2). Moreover, contrary to Defendants assertions, Defs Oppn at 6, Ms. Mabesas statements, as recounted in the declarations, are not hearsay. See Fed. R. Evid. 801(d)(2) (excluding statements

of a party or its agent from the definition of hearsay); Fed. R. Evid. 801(c)(2) (defining hearsay

as a statement used to prove the truth of the matter asserted). On the other hand, Ms. Mabesas testimony is fraught with inconsistencies. In her

affidavit, Ms. Mabesa stated I know for certain that I never told Ms. Libertino or Mr. Abad to just ignore it). Mabesa Afft 9. However, Ms. Mabesas deposition testimony directly contracts this statement. Mabesa Tr. 51:10-21 (Ex. 13) (Q: Did you call H1B employees? A: I dont remember calling them about this. Q: You dont remember calling them? A: No. Q: Did you you dont remember calling anyone? A: I cant we might have talked about it; but I cant remember who called, if I called or they called. Q: Do you remember any conversation you had with any of the H1B employees ? A: Conversation, no[] I cant remember exact conversation I had.). Accordingly, the Court should disregard Ms. Mabesas contrary affidavit. See Adusumilli v. City of Chicago, 168 F.3d 353, 360 (7th Cir. 1998) (explaining the well-established rule that [w]here deposition and affidavit conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken) (citation omitted). Additionally, Ms. Mabesa has considerable motive for fabrication. Ms. Mabesas employer is facing default judgment if she tells the truth about her calls and instructions to H-1B employees,

and she is facing considerable pressure from the companies management and lawyer. Recording Tr. at 12-13 (Our lawyer is mad at us stating that Tess called Dante Abad and told him not to respond. The judge will not like it if we are saying those to our employees. This is the reason why [executive] Manny [Garcia] scolded Tess.).

8 See Pls. Brief at 2-3 (Dkt. No. 171).


9

15. Defendants equated a response with an employee that was not happy with the company.

Id. This message was clearly conveyed to Defendants employees, as only a single employee

responded and provided documents of the 84 contacted. Defs. Oppn at 17; Brown Decl. 10.

Second, Defendants were under an affirmative obligation to produce their employees

documents. Federal Rule of Civil Procedure 34(a) requires a party to produce requested

documents in its possession, custody, or control. Fed. R. Civ. P. 34(a)(1). A party responding

to a document request is under an affirmative duty to seek that information reasonably available

to it from its employees, agents, or others subject to its control. Novelty, Inc. v. Mountain View

Marketing, Inc., 265 F.R.D. 370, 376 (S.D. Ind. 2009) (citation omitted); accord Gray v.

Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992). It is axiomatic that corporations control the

documents of their employees. Chevron Corp. v. Salazar, 275 F.R.D. 437, 448 (S.D.N.Y. 2011)

(Courts have repeatedly found that employers have control over their employees and can be

required to produce documents in their employees possession) (compiling cases); Flagg v. City

of Detroit, 252 F.R.D. 346, 353-54 (E.D. Mich. 2008) ([C]ourts have found that a corporate

party may be deemed to have control over documents in the possession of one of its officers or

employees) (citing Riddell Sports Inc. v. Brooks, 158 F.R.D. 555, 558 (S.D.N.Y. 1994); Herbst

v. Able, 63 F.R.D. 135, 136 (S.D.N.Y. 1972)); In re Folding Carton Antitrust Litig., 76 F.R.D.

420, 423 (N.D. Ill. 1977).

Defendants cannot reasonably deny that their employees e-mails were in Defendants

custody and control. Herbst, 63 F.R.D. at 137 (Plainly, Douglas employees are persons within

its control). Accordingly, Defendants purported effort to remain neutral and instruct their

employees that they were not required to respond to Mr. Centos e-mail, Defs. Oppn at 8, was a

violation of Rule 34; this Courts October 16, 2012 and February 13, 2013 Orders, and


10

constituted witness tampering. Defendants were under an affirmative obligation to produce their

employees e-mails. Moreover, the February 13 Order expressly placed responsibility for

document collection from H-1B employees in Mr. Centos hands. Defendants premeditated

efforts to obstruct the collection process through witness tampering9 effectively sabotaged that

process10

and were taken with the highest degree of bad faith.

Defendants admit to engaging in a coordinated effort to instruct employees that

responding to Mr. Centos e-mail was not required. At least two employees were told to

ignore Mr. Centos e-mail altogether. The only plausible explanation for these efforts was to

induce employees not to produce documents, i.e. witness tampering. 18 U.S.C.

1512(b)(2)(A). These efforts were almost entirely successful at undermining the Courts

February 13, 2013 Order and obstructing discovery, as only one employee produced a small

number of e-mails, of the 84 Mr. Cento e-mailed. Defendants conduct warrants the harshest

sanctions.

II. Ramon Villegas Secretly Recorded Conversation With Dante Abad Constitutes Additional Witness Tampering.

In a further effort to influence witnesses in this case, Defendants contacted Dante Abad

on March 31, 2014 and attempted to pressure him into reversing his signed declaration and

discourage his participation in this case. Villegas Afft 7, Recording Tr.; 2nd Abad Decl. 7.

A person commits witness tampering if he knowingly uses intimidation, threatens, or corruptly

persuades another person, or attempts to do so, or engages in misleading conduct towards

another person, with intent to influence, delay, or prevent the testimony of any person in an

9 Dhani Afft 8 (We held a meeting with our staff [and] directed the staff to tell any employee

that asked about [Mr. Centos] email that responding was up to them).

10 Defs. Oppn at 17 (only one of the employees emailed actually provided emails the effort

to obtain emails had failed).


11

official proceeding. 18 U.S.C 1512(b)(1). Defendants conduct falls squarely within this

definition. See Young v. Office of U.S. Senate Sergeant at Arms, 217 F.R.D. 61, 67-69 (D.D.C.

2003) (ordering dismissal for witness tampering where litigant called witness and attempted to

coach [him] into providing false testimony).

As the transcript of the secret and illegally recorded conversation reveals, Mr. Villegas

first placed Mr. Abad on notice that his job was at risk and that it would be difficult for him to

find another. Recording Tr. at 8-9 (Maryland is a tough market, right. And ah were so lucky

that we were able to place you, right? [T]he market is tough Its very tough anywhere. I

saw others, theyre having hard time too.). Mr. Villegas had never discussed this topic with Mr.

Abad before. 2d Abad Decl. 7. Mr. Villegas then began questioning Mr. Abad about his

involvement in this lawsuit and his declaration. Recording Tr. at 9. Mr. Abad was shocked and

afraid. 2d Abad Decl. 7. He was concerned that Defendants would retaliate against him for

providing evidence against them.11

Id. Because of this, he denied having signed his earlier

declaration. Recording Tr. at 13; 2d Abad Decl. 7. Mr. Abad has since re-affirmed his

signature of, and the truth within, his prior declaration. 2d Abad Decl. 3-4, 6.

Mr. Villegas conduct was outrageous and demonstrated an intent to influence Mr. Abad

into reversing his prior testimony and discourage his participation in the case. The only plausible

purpose for Mr. Villegas mentioning the tough market and repeatedly asking Mr. Abad about

his declaration and his involvement in the case was to intimidate and coerce him. In this context,

Mr. Villegas repeatedly suggested the proper answer Mr. Abad should provide. See, e.g.,

Recording Tr. 11, 13 (What we are telling the lawyer is that it is possible that Dante

misinterpreted what we said. Im sure Tess would have told you is Hey Dante, its up to you to

11

Defendants propensity for retaliation is well known among Defendants employees. See Pls. Brief at 2-3.


12

respond or not to respond. Am I right? We know you are always busy. Am I right? Isnt that

what Tess told you[?] That is what they are pinning on us and basically the judge will not like

it if we are saying those to our employees. Our point is Tess did not say that.). This constitutes

witness tampering and further supports Plaintiffs motion for sanctions. Moreover, Defendants

illegal recording, and submission of a purported transcript from that recording, demonstrates the

lengths they will go to obstruct witnesses and try to conceal their prior discovery misconduct.

III. Defendants Extremely Belated Production of E-mails Does Not Excuse Their Misconduct Or Cure Prejudice To Plaintiffs.

a. Defendants Cannot Avoid Sanctions Through Belated Production.

As they have done in the past when faced with sanctions, Defendants have attempted to

avoid punishment by belatedly producing some responsive documents.12

R&R at 9 (the fact

that Defendants were able to produce many of the responsive documents shortly after being

notified that Plaintiff was seeking sanctions underscores the fact that Defendants were acting in

bad faith). Defendants, without explanation, failed to search archived email folders on their

computer server and on individual computers. Defs Oppn at 4-5. Since the instant motion,

Defendants have produced approximately 2,500 emails (dated between 2010 and 2014). The fact

12

Defendants assert, without proof, that Defendants began this effort immediately after the Courts order on the first motion for sanctions; not after and not because Plaintiffs filed the current motion. Defs. Oppn at 5; id. at 16 (Plaintiffs have not even bothered to wait to see how Defendants respond to the Courts order that any additional documents be produced). Defendants assertion is incredible. First, Defendants have been under a Court-ordered obligation to produce these documents since October 16, 2012. Order (Oct. 16, 2012); R&R at 6

n.2. Moreover, since the Courts sanctions order, Defendants have produced two other sets of documents to Plaintiffs. Throughout this process, Plaintiffs counsel and Defendants counsel have been in contact regarding Defendants discovery efforts. At no point did Defendants counsel ever indicate they planned to make a production of e-mails as they did after the witness

tampering motion.


13

Defendants had these e-mails and likely thousands more e-mails not yet produced13 in their

possession throughout the pendency of this case underscores Defendants bad faith discovery

misconduct.

Moreover, this production proves what numerous declarants had affirmed and what

Plaintiffs had suspected all along that Defendants extensively rely on e-mail communication

with their field employees. This is so despite numerous assurances by Defendants that they had

produced all responsive e-mails and that they rarely used e-mail. See, e.g., R&R at 8 ([Michael

Agustin and Erickson Mendoza] allege over 700 e-mail exchanges with Defendants since 2009.

Defendants respond by asserting that Agustin is an exception to their general policy to

communicate by phone and Mendoza is an inadvertent oversight); Defs. Oppn to Pls. Mot.

for Sanctions, at 9 (Dkt. No. 103) (Defendants maintain they have produced all the e-mail in

their possession and control. It is axiomatic that Defendants cannot produce e-mails which they

do not possess.); H. Dhani 30(b)(6) Depo. Tr. 27:14-33:5 (Ex. 14) (testifying under oath that

Defendants rarely used e-mail and that they had produced all responsive e-mails). Defendants

latest production proves that these assurances had absolutely no basis in fact and amounted to

another blatant attempt to skirt their discovery obligations.

Defendants cannot avoid sanctions for willful misconduct through belated production of

documents. Johnson v. FedEx Corp., No. IP 99-1377-C-Y/K, 2002 WL 362753, at *3 (S.D. Ind.

Mar. 6, 2002) (quoting Ill. Tool Works v. Metro Mark Prod., Ltd., 43 F. Supp. 2d 951, 960 (N.D.

Ill. 1999) (Unfortunately for FedEx, it may not avoid sanctions by producing documents after

13

Defendants have substantially more than 2,500 e-mails and have yet to produce many, as

shown by declarants having each attested to having hundreds of emails exchanged with

Defendants. Agustin Decl. (over 500 e-mails) (Dkt. No. 100); Mendoza Decl. 2 (over 200 e-

mails) (Dkt. No. 112-1); Licupa Decl. 9 (Ex. 1); Libertino Decl. 3; Kumar Decl. 4 (Ex. 3);

Abad Decl. 5.


14

the motion for sanctions is filed . To allow a party to avoid sanctions by such a contrivance

would defeat the purpose of the rules, which is to promote voluntary discovery without the need

for motion practice.); Fautek v. Montgomery Ward & Co., 96 F.R.D. 141, 145 (N.D. Ill. 1982)

(Ultimate production of the material in question does not absolve a party where it has failed to

produce the material in a timely fashion.). As this Court has already found, production in

response to the threat of sanctions only underscores Defendants bad faith. R&R at 9.

Here, Defendants have been under a Court-ordered obligation to produce their

communications with putative class members since October 16, 2012. Order (Oct. 16, 2012);

R&R at 6 n. 2. Defendants alleged realization, a year and a half later, that they failed to search

archived email folders, Defs. Oppn at 4, does not excuse their prior misconduct and their

affirmative efforts to obstruct the discovery process and tamper with witnesses. Moreover,

Defendants explanation that these e-mails were overlooked because they were archive[d] and

on personal computers is not credible and is directly contradicted by Mr. Dhanis deposition

testimony.14

Defendants current explanation is either a fabrication, or Mr. Dhani perjured

himself regarding Defendants prior search efforts. See Moore v. RTL Const., Inc., No. 09-3178

PAM/SER, 2011 WL 4738154, *6 (D. Minn. Aug. 23, 2011) (This Court has no reason given

the truncated document production to believe any ex post facto explanation or excuse that RTL

offers. Sanctions are appropriate for the concealment of evidence). In either case,

Defendants misconduct was willful and taken in bad faith.

14

Dhani 30(b)(6) Depo. Tr. 64:13-15 (Q: Were the archived e-mails searched? A: Everything is on the server. It will be on there. Emil showed us how to do it. We did it.); id. 19:2-3 (Q: And are files ever archived off the system? A: No.); id. 73:6-12 ([Ramon Villegas] went to each computer he went to each computer, he also went to the server, each folder and checked for the e-mails).


15

b. Defendants Recent Production Does Not Cure Prejudice to Plaintiffs.

In cases of witness tampering, the Court need not measure the impact on the litigation of

a wrongdoers willful misconduct before it issues a dismissal sanction. Ramsey, 2010 WL

125119, at *6 (ordering default judgment as sanction for attempted witness tampering).

Nevertheless, Defendants witness tampering has caused Plaintiffs substantial prejudice, which

Defendants production does not cure. Defendants conduct has prejudiced Plaintiffs in at least

three ways. First, Defendants have still not produced the e-mails of H-1B employees (i.e. the

evidence from tampered-with putative class members). Defendants efforts have ensured that

these individuals did not come forward with responsive documents. See Libertino Decl. 8

(Because of [Ms. Mabesas] instructions, I did not respond to Mr. Centos e-mail); Abad Decl.

7 (same).

Second, given Defendants affirmative bad faith efforts to tamper with witnesses, there is

no reason to believe Defendants latest production of e-mails is full and complete (nor do

Defendants even contend that it is). According to Defendants, the only e-mails found were

archive[d] or on personal computers. Defs. Oppn at 4. But Mr. Dhani testified that few e-

mails are ever archived and that all e-mails are stored on the server.15

By Mr. Dhanis own

admission, most of Defendants e-mail is not archived or stored on personal computers thus

there is every indication that Defendants production remains deficient. See Moore, 2011 WL

4738154, at *8 (finding defendants prior discovery misconduct make it problematic for

15

Dhani 30(b)(6) Depo. Tr. 64:4-11 (Q: Are e-mails ever archived and then placed somewhere

else? A: You know, our system will ask for once in a while do you want to archive, and I dont know if people say yes or no. I dont think 90 percent of the people know what that means to be honest with you. If Im asked, sometimes I say yes, sometimes I say no.); id. 64:13-15 (Q: Were the archived e-mails searched? A: Everything is on the server. It will be on there); id. 32:16-22 (Like I said, in 2010 our system crashed, and we lost almost everything e-mail wise only the person who were able to recover their e-mail was if they saved it on their own computer,

and 99 percent of the people nobody did. So they were all gone at that point unfortunately.).


16

Plaintiff and the Court to trust and rely on the accuracy and completeness of the documents

produced in this case). Additionally, Mr. Dhani testified that Defendants internal e-mail server

crashed in 2010, causing the loss of all e-mail before that year. Dhani 30(b)(6) Depo. Tr. 32:16-

22. Defendants latest production does not appear to include any e-mail from before 2010.16

One of the benefits of seeking discovery from H-1B employees directly was that their e-mail was

not lost in 2010.17

Third, Defendants document production comes mere weeks before the deadline to file

class certification and summary judgment motions. Case Management Plan at 2-3 (Dkt. No.

165). This last minute production has ensured that Plaintiffs lacked relevant evidence through

the vast majority of this case. Moreover, Defendants repeated failures to produce (and

affirmative efforts to prevent) discovery, have significantly delayed the resolution of Plaintiffs

case on the merits. Order (Mar. 3, 2014) (continuing trial from May 5, 2014 to June 8, 2015)

(Dkt. No 164).

IV. A Default Judgment, Or, In The Alternative, A Finding Of Fact, Are Appropriate Sanctions Given Defendants Level Of Misconduct.

Defendants argue that they have already been sanctioned for their discovery misconduct

and that further sanctions are inappropriate. This is incorrect. Witness tampering was not the

basis for the Courts January 29, 2014 Order granting sanctions for discovery misconduct. The

Court was not aware, when ruling on Plaintiffs initial motion for sanctions, of the depths of

Defendants malfeasance. Moreover, the Court premised its denial of more severe sanctions on

the assumption that Defendants would promptly complete their document production. R&R at

16

The relevant class period in this case is May 2006 through the present. See Order (Oct. 16,

2012).

17 Defendants field employees use personal e-mail accounts (such as Gmail or Yahoo), and were

not reliant on Defendants internal e-mail server.


17

13 (Rather than enter a judgment or permit an adverse inference, Defendants simply need to

produce any documents relevant to the remaining claims without further delay). Given the new

evidence that Defendants willfully and intentionally acted to subvert the discovery process in this

case, there is absolutely no reason to believe that Defendants will comply with their discovery

obligations. Nor is there reason to believe, given Defendants efforts to intimidate witnesses and

generate fear among their employees, that Plaintiffs will have a reasonable opportunity to obtain

relevant discovery from witnesses themselves.18

Next, Defendants argue that a default judgment or a finding of fact is disproportionate to

the alleged offense. Defs. Oppn at 18. This is false. The Court may presume proportionality

when there are wilful or bad faith violations of discovery orders. Crown Life Ins. Co. v. Craig,

995 F.2d 1376, 1383 (7th Cir. 1993). Furthermore, [t]he Seventh Circuit has consistently

condemned witness tampering, suggesting that the practice deserves the harshest sanctions.

Ramsey, 2010 WL 1251199, at *5 (citing Ty Inc. v. Softbellys Inc., 353 F.3d 528, 537 (7th Cir.

2003); Weibrecht v. S. Ill. Transfer, Inc., 241 F.3d 875, 884 (7th Cir. 2001); Lightning Lube, Inc.

v. Witco Corp., 4 F.3d 1153, 1178-79 & n.15 (3d Cir. 1993)). Coercing or seeking to obtain or

manufacture false testimony strikes at the heart of the judicial system . Our legal system is

dependent on the willingness of litigants to allow an honest and true airing of the real facts.

Young, 217 F.R.D. at 71 (quoting Quela v. Payco-Gen. Am. Credits, Inc., No. 99 C 1904, 2000

WL 656681, *7 (N.D. Ill. May 18, 2000)); see also ABF Freight Sys., Inc. v. NLRB, 510 U.S.

18

Defendants assert, incredibly, that if Plaintiffs actually care[d] about these emails they should simply subpoena Defendants own employees to produce them. Defs. Brief at 16-18. The absurdity of this position is self-evident and Defendants cite no authority requiring a litigant

to separately subpoena documents from each and every employee of a corporate defendant. As

discussed above, employee documents are in the custody and control of the Defendants and the

Defendants were under an affirmative obligation to produce them. Had Defendants simply

complied with their discovery obligations and the February 13, 2013 Order Defendants subpoena suggestion would be moot.


18

317, 323 (1994) (False testimony in a formal proceeding is intolerable). In other words, the

importance of accurate and truthful discovery to the civil justice system cannot be overstated.

Quela, 2000 WL 656681, at *7 (explaining further, our court system must have zero tolerance

for parties who seek to intentionally distort the discovery and trial process and granting default

judgment).

In light of the overwhelming importance of truthful discovery and testimony, Defendants

misconduct, discussed supra, warrants a default judgment on the issue of liability. See Crown

Life Ins. Co., 995 F.2d at, 1383-84 (affirming dismissal for wilful discovery violation);

Ramsey, 2010 WL 1251199, at *5-6 (dismissing case for witness tampering).

In the alternative, if the Court does not grant a default judgment, Plaintiffs respectfully

request that the Court order that H-1B employees are deemed to have started their employment

upon their initial I-797 validity date. See Pls. Brief at 10-12. Defendants falsely, and without

citation, assert that federal immigration law does not permit an H1-B [sic] employee to work

until October 1st of the year in which their H1-B [sic] visa is approved. Defs. Oppn at 18.

Defendants lack of citation is telling. Defendants position misstates immigration law. The I-

797 validity date represents the date on which an H-1B employee is permitted to start work, the

date that the employer represented to USCIS the employee was expected to start work, and the

date on which the employee was presumed to begin work. See 8 CFR 214.2(h)(9)(ii);19

8 CFR

214(h)(13)(i)(A) (A beneficiary shall be admitted to the United States for the validity period of

the petition, plus a period of up to 10 days before the validity period begins and 10 days after the

validity period ends. The beneficiary may not work except during the validity period of the

petition).

19

Please note that Plaintiffs mistakenly cited this provision as 8 CFR 214.2(9)(ii) in their opening brief, omitting the (h). The proper citation is 8 CFR 214.2(h)(9)(ii).


19

By way of example, Mr. Panwars H-1B petition was approved on April 5, 2011. Panwar

I-797 (Ex. 8), p. 2; 3rd Am. Compl. 38. On this date, Mr. Panwar was eligible to begin work,

and he requested, via e-mail and telephone, an immediate work assignment. Id. Mr. Panwar was

not assigned work or paid until December 16, 2011. Id. 41. Mr. Panwars example

demonstrates the crucial importance of e-mail in identifying putative class members start dates.

By obstructing Plaintiffs access to this crucial evidence, Defendants have made it much more

difficult for Plaintiffs to show the date on which putative class members were in the United

States and available to work. The I-797 validity date is a fair surrogate for this missing evidence.

See United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 271 F.R.D. 487, 502 (N.D.

Ind. 2010) (In cases where deeming certain facts to be established does not equate to a default

judgment, this sanction is one of the least harsh sanctions available to court) (citation omitted).

Such a sanction is particularly lenient in light of the other relevant evidence Defendants

misconduct has succeeded in concealing. For instance, employee e-mails are also relevant for

identifying class members, revealing wage abuses, calculating damages, and revealing the scope

and breadth of Defendants force labor scheme. Because Plaintiffs requested finding of fact

does not ameliorate this additional prejudice, a default judgment is the more appropriate

sanction. However, in the alternative, a finding of fact will help lessen some of the prejudice

Defendants intentional bad faith conduct has caused.

CONCLUSION

For the reasons stated above, and in Plaintiffs opening brief, default judgment should be

entered against the Defendants, or if default is not granted, in the alternative, the Court should

order certain facts established, as referenced above and in Plaintiffs opening brief.


20

Date: April 21, 2014 Respectfully submitted,

/s/Michael F. Brown

Michael F. Brown

DVG LAW PARTNER LLC

P.O. Box 645

Neenah, WI 54957

920-238-6781

920-273-6177 (fax)

[email protected]

Daniel A. Kotchen

KOTCHEN & LOW LLP

1745 Kalorama Road NW

Suite 101

Washington, DC 20009

(202) 416-1848

(202) 280-1128 (fax)

[email protected]

[email protected]

Vonda K. Vandaveer

V.K. Vandaveer, P.L.L.C.

P.O. Box 27317

Washington, DC 20038-7317

202-340-1215

202-521-0599 (fax)

[email protected]

Andrew P. Wirick

HUME SMITH GEDDES GREEN & SIMMONS,

LLP

Attorney No. 11362-49 54 Monument Circle, 4th Floor

Indianapolis, Indiana 46204 Telephone: (317) 632-4402

Facsimile: (317) 632-5595

[email protected]


CERTIFICATE OF SERVICE

I hereby certify that on April 21, 2014, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system which will send notification of such filings to

Defendants counsel of record in the Courts CM/ECF system.

/s/Michael F. Brown

Counsel for Plaintiffs


reply brief, witness tampering motion against access therapies et al

Documents

defendants conduct

documents case

defendants actions

b employees

plaintiffs motion

instructed employees

production of documents

responsive documents