Libel Plaintiff Sanctioned, Counsel Recommended for Discipline, for Hiding Criminal Record
 
January 2, 2007
 
Charles D. "Chuck" Tobin- Washington

A federal magistrate has recommended sanctions against an Indiana libel plaintiff – and bar disciplinary proceedings against her lawyer – for hiding her criminal past in discovery, then refusing to answer questions when confronted with the record.

Plaintiff Lita Filippo sued The Times, the Lee Enterprises newspaper that serves the Northwest Indiana community, based on a series of publications about her 2003 arrest for DUI.  At the time, Filippo was an officer of the Partnership for a Drug-Free Lake County, the group responsible for awarding public grants for area anti-drug and -alcohol efforts.  The arresting officer called her “the most obnoxious drunken female” he had ever arrested after Filippo allegedly threatened his job. 

Filippo was acquitted of the DUI charge in 2004 after a jury trial. She filed suit against the newspaper a year later. 

Throughout discovery, the newspaper repeatedly asked Filippo if she had a prior criminal record.  She responded to an interrogatory:  “None for the past 10 year[s].”  In response to a document request related to any criminal charges or convictions, she referred the newspaper to the public record of her 2003 DUI charge.  When shown during her deposition a sworn pleading she had filed in connection with that DUI charge, in which she sought reinstatement of her driver’s license and represented that she had no previous DUI record, Filippo reaffirmed its accuracy.  And when asked outright in the deposition if she has previously been accused or convicted of a crime, she said, “No.”

Following the deposition, The Times uncovered a handwritten notation in storage in the local state court, and a microfiche file in another court clerk’s office, reflecting that Filippo had been arrested twice in 1989 – once for DUI, and the second time for disorderly conduct, criminal trespass, public intoxication and intimidation after threatening a police officer in a bar.  Filippo pleaded guilty to criminal trespass a year later and received a suspended jail sentence, according to these records. 

The records showed that in each of these prior arrests, Filippo had been represented by the same lawyer who represents her in the libel lawsuit.

Filippo had agreed to sit for a second deposition in the libel case on the issue of damages.  After concluding that examination, the newspaper’s counsel confronted Filippo with the criminal records.  She refused to answer any questions.  When pressed, her lawyer said that he had forgotten about the incidents and that all of her old records had been left at his prior law firm. 

The Times brought a motion to compel further testimony and for monetary sanctions against Filippo and her lawyer.  In opposing the motion, Filippo accused the newspaper of violating the agreed scope of the second deposition, unfairly surprising her with the documents, and seeking to punish her for a failed memory. 

Magistrate Judge Andrew P. Rodovich rejected the protests of  Filippo and her counsel.  In his December 11, 2006, Report and Recommendation, he said: 

 •  “The [newspaper’s] deviation from the purported subject matter at the second deposition is a distraction from the issue placed squarely before the court, specifically the plaintiff’s failure to disclose this information in the first instance.”

•   “The court will not entertain the notion that the plaintiff was ‘surprised’ by knowledge of her own plea agreement.”

•   “The court does not accept the suggestion by the plaintiff and her attorney that the passage of time erased all recollection of being charged with four crimes, pleading guilty to one of them, and being sentenced and fined.”

He also turned aside Filippo’s argument that her prior criminal record is irrelevant in litigation over coverage of her 2003 DUI charge.  “Her argument, made without citation to any legal authority, does not explain the logical basis for arguing that evidence of reputation, in a defamation claim, can be regarded as irrelevant.” 

The ruling came down in the midst of summary judgment briefing.  The magistrate judge held that, if summary judgment is denied, Filippo should sit for another deposition to “include any matter considered relevant under the Federal Rules.”  He also recommended that the newspaper receive its legal fees. Finally, the judge recommended that the district court certify the matter to the Indiana Supreme Court Disciplinary Committee “for their consideration of possible action” against Filippo’s lawyer.

Holland & Knight represents Lee Enterprises in this matter.

For more information, e-mail Charles D. Tobin at charles.tobin@hklaw.com or call toll free, 1-888-688-8500.

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