by Matt Clarke

On December 12, 2016, the Fifth Circuit Court of Appeals upheld a Texas district court’s sanctions of $1,000 each against lawyers representing GEO Group, the nation’s second-largest private prison operator, after finding they had engaged in discovery abuse.

Lisa Velasquez Olivarez filed a civil rights action against GEO Group and its employees alleging that, while she was incarcerated at the GEO-run Maverick County Detention Center in Texas, she was sexually assaulted by then-GEO staff member Luis Armando Valladarez. Valladarez claimed the sex was initiated by Olivarez and “consensual,” despite the fact that prisoners in Texas cannot legally consent to sexual contact with prison staff.

Early in the litigation, GEO Group attorney Shawn K. Fitzpatrick submitted the company’s initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)(A). Attorney Timothy Flocos, who was representing Valladarez, did likewise. Neither disclosure included any mention of audio recordings of Olivarez’s phone conversations with her mother and her friend Juan.

Under Rule 26(a)(1)(A), a party is required to disclose all documents, electronically stored information and tangible things it may use to support its claims or defenses, unless the sole use would be for impeachment purposes.

During subsequent depositions, Fitzpatrick asked Olivarez about her phone calls. She denied having mentioned the incidents to her mother and said she had told Juan she was forced to have sex with Valladarez. Flocos then played recordings of the conversations and questioned her extensively about the calls. Only after the deposition ended did Fitzpatrick provide Olivarez’s attorney with an online link to the recordings.

Olivarez filed a motion for sanctions against Fitzpatrick and Flocos for failing to include the audio recordings in their initial disclosures. The parties agreed to settle the suit in November 2015. Later, the district court entered an order holding that the phone recordings contained more than impeachment information and therefore should have been disclosed, and sanctioned both Fitzpatrick and Flocos with $1,000 fines. They appealed.

The Fifth Circuit noted that substantive evidence is used to establish the truth of a matter while impeachment evidence is offered to discredit a witness. When the same evidence serves both substantive and impeachment functions, it should not be treated as “solely” impeachment evidence.

In this case, the recordings “likely had some impeachment value because they were at least arguably inconsistent with Olivarez’s” deposition testimony, but they also had substantive value because they seemed to suggest Olivarez may have consented to the sexual encounters. “Accordingly, they were, at the very least, in part substantive and the district court did not abuse its discretion in concluding that Appellants were required to disclose” them, the Court of Appeals wrote.

The Court also rejected the attorneys’ claim that they had “substantial justification” for nondisclosure as they only intended to use the recordings for impeachment, noting that they had cited only out-of-circuit cases that were contrary to an in-circuit binding precedent. The district court’s judgment and the sanctions were therefore affirmed. See: Olivarez v. GEO Group, 844 F.3d 200 (5th Cir. 2016). 

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