Court Sanctions Libel Plaintiff, Counsel, for Hiding Criminal Record in Discovery
 
January 8, 2008
 
Charles D. "Chuck" Tobin- Washington

Explanations for Lies “Borderline Ridiculous”

Calling her explanations for failing to disclose discoverable information “borderline ridiculous” and her counsel’s investigation “laughable,” a federal district court ordered a libel plaintiff and her lawyer to pay sanctions to a Lee Enterprises newspaper, finding that the plaintiff lied in deposition.

U.S. District Judge James T. Moody, in Filippo v. Lee Publications, Inc., ordered the plaintiff and her lawyer to bear the nearly $17,000 in expenses The Times incurred in uncovering the criminal record that the plaintiff hid during discovery.

The lawsuit arose out of a series of articles, editorials and cartoons in The Times, Lee’s newspaper serving northwest Indiana and suburban Chicago, about the 2003 drunken driving arrest of the plaintiff. At the time, Filippo was vice chair of the Partnership for a Drug-Free Lake County, a quasi-public agency that educates youth about the dangers of drugs and alcohol. Filippo was acquitted a year later after a jury trial.

The newspaper published two dozen articles and editorials about the organization and the plaintiff. The reports included the arresting officer’s quote that Filippo was “the most obnoxious drunken female” he had ever arrested,” allegedly threatening his job and warning him that her jewelry was worth more than his salary. In April 2007, Judge Moody entered a summary judgment order in favor of the newspaper, finding that Filippo had failed to establish actual malice, and the editorials and cartoon were protected opinion.

In his September order awarding sanctions, Judge Moody agreed with the newspaper that Filippo violated her discovery obligations in failing to disclose that she had previously been charged with DUI and other crimes. Throughout discovery, the newspaper repeatedly asked Filippo if she had a prior criminal record. For example, when asked outright in the deposition if she has previously been accused or convicted of a crime, she said, “No.”

But 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 again 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 represented 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.

In opposing sanctions, Filippo and her counsel asserted that they had forgotten the previous arrests, and counsel said these records were in storage at a law firm at which he no longer worked. Judge Moody, in a 20-page opinion, showed no tolerance for these excuses. The judge:

• Observed that as Filippo was 30 at the time of the earlier arrests, these were “no youthful indiscretions. “Barring some medical evidence of incapacity or faulty memory,” Judge Moody wrote, her explanation that she had forgotten her criminal record was “borderline ridiculous.”
• Noted that she later signed a plea agreement on the charges, and that: “Unless a person is a habitual criminal, and in and out of court so often that proceedings start to blur together, one does not forget something like this.”
• Said the record indicates Filippo “was hoping to hide her criminal record in [an] effort to support her claim” of a reputation injured by The Times’ reports on the 2003 DUI charge that underly this libel lawsuit.
• Called her lawyer’s discovery responses “blatantly incomplete” and his purported efforts to investigate his client’s criminal record “laughable” and a violation of duty.

Holland & Knight represented the Lee Enterprises newspaper in this matter.

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