Tag: testimony

Comey’s Testimony Underscores Need for Strong Whistleblower Protections

For me, the most telling moment of former FBI Director Jim Comey’s June 8th testimony occurred early in the hearing, when Mr. Comey choked up as he recalled the White House’s publicly stating that the President had fired him because the “FBI was in disarray.”

This emotional display seemed out of character for Mr. Comey. While U.S. Attorney for the Southern District of New York, he successfully prosecuted organized crime. As Deputy Attorney General during the George W. Bush Administration, Mr. Comey refused to sign an extension of the warrantless domestic spying program and defied the White House Counsel and Chief of Staff. Mr. Comey can fairly be described as a “tough guy.” So how did he go from leading the most powerful law-enforcement agency worldwide to being labeled a “leaking liar”?

To an experienced whistleblower advocate, Mr. Comey’s predicament is not surprising. Mr. Comey’s experience, unfortunately, is like those of many whistleblowers I have represented over more than a decade. President Trump promised to bring a business approach to government—and his retaliation against Mr. Comey is straight out of the corporate defense playbook. Corporations typically take the following steps of escalating retaliation to silence whistleblowers:

Intimidate and Silence the Whistleblower

In his June 8th testimony, Mr. Comey described in detail how the President had asked him to drop the investigation of Michael Flynn and had conditioned Mr. Comey’s job on “loyalty” to him. Senator Rubio expressed skepticism about Mr. Comey’s feeling intimidated by the President and blamed Mr. Comey for not pushing back. But that type of Monday-morning quarterbacking ignored the power dynamics of the conversation. Mr. Comey wanted to keep his job and was understandably reluctant to accuse the President of obstructing an investigation.

Whistleblowers often confront this intimidation tactic in the workplace. A supervisor or senior company official tells the whistleblower to “let it go,” “mind your own business,” or learn to be a “team player.” And in some cases, the whistleblower is told to shut up if he or she wants to remain employed. Threats of retaliation, whether express or implicit, are powerful tools to silence a whistleblower. When a company officer or senior manager orders a subordinate to do something unlawful or to cover up unlawful conduct, holding firm to one’s ethical values is not an easy avenue to follow. As Mr. Comey learned, refusing to carry out an unlawful order may be career suicide, at least in the short term.

Retaliate Swiftly and Severely Against the Whistleblower

Initially, the bizarre method of firing Mr. Comey seemed surprising for a President who perfected the art of firing on his reality show, The Apprentice. Mr. Comey was not given an opportunity to resign; he was not even notified that he had been fired. But now that we know about the President’s real motive for firing Mr. Comey, it’s clear that his tack was deliberate.

Mr. Comey learned of his firing while addressing FBI agents at a Los Angeles field office when the announcement flashed across a television screen. The White House had announced Mr. Comey’s firing without notifying Mr. Comey himself. President Trump sent a loud and clear message to Mr. Comey and to every senior government official about the consequence of disloyalty.

In the corporate workplace, whistleblower-employees are similarly humiliated as a warning to their colleagues. A whistleblower may be escorted out of the office with security guards while other employees are present, pulled out of a meeting and fired on the spot in front of colleagues, or simply fired via text message. When a corporation fires a whistleblower in this humiliating fashion, it ensures that all other employees know the consequence of whistleblowing.

Badmouth the Whistleblower and Their Work History

Firing Mr. Comey in a humiliating and offensive manner served only as phase one. President Trump then defamed Mr. Comey and asserted that he fired him because of chaos within the FBI, as well as the alleged loss of confidence in Mr. Comey among FBI agents.

These statements stand in stark contrast to the President’s repeated, public praise of Mr. Comey before Mr. Comey refused to comply with the President’s “hope” that Mr. Comey drop the investigation of Flynn. Indeed, if President Trump believed that Mr. Comey’s leadership caused chaos within the FBI, then why did the President invite Mr. Comey to continue to serve as FBI Director?

This patent distortion of Mr. Comey’s performance record is an all-too-common experience of whistleblowers. Prior to blowing the whistle, they receive strong performance evaluations and bonuses; they are valued members of the team. But once they blow the whistle and refuse to drop their concerns, they are suddenly deemed incompetent and unqualified for their position. And when a company realizes that it lacks any existing basis to fire the whistleblower, it creates one by subjecting the whistleblower to heightened scrutiny and setting the whistleblower up to fail. For example, a company might place the whistleblower on a performance-improvement plan that contains impossible objectives, and then fire the whistleblower for not meeting those unattainable goals.

This tactic may backfire and enable a whistleblower to ultimately prevail at trial, but the damage to the whistleblower’s reputation is permanent. Prospective employers are reluctant to hire someone who previously fired for poor performance and are especially reluctant to hire a whistleblower. Many whistleblowers never find comparable employment and must accept lower-level positions, earning a fraction of what they did before their wrongful termination.

Attack the Whistleblower’s Credibility

Apparently, President Trump has no evidence to rebut Mr. Comey’s vivid account of the President’s alleged attempts to obstruct justice. So President Trump called him a “liar.”

Desperate to defend themselves at all costs, corporations frequently employ this tactic—labeling the whistleblower a disgruntled former employee who will say anything to win his or her case. So far, this is not working well for President Trump, whose accusation merely serves to shine a spotlight on his own questionable credibility.

Attacking a whistleblower’s credibility is an effective and pernicious tactic in many whistleblower cases. Once expelled from a company, a whistleblower is marginalized and alienated from former coworkers. The key witnesses continue to work at the company and, fearing retaliation, are reluctant to corroborate the whistleblower’s testimony. Though whistleblowers may still prevail (for example, by using documentary evidence), the attack on a whistleblower’s credibility is odious because the company fired the whistleblower precisely for having integrity.

Create a Post-Hoc Justification for Firing the Whistleblower

Prior to firing Mr. Comey, President Trump papered the file with a post-hoc justification for the firing. After the President decided to fire Mr. Comey, Deputy Attorney General Rod Rosenstein was tasked with drafting a memorandum to the Attorney General outlining concerns about Mr. Comey’s performance. Most of those concerns focus on Mr. Comey’s statements about the investigation of former Secretary of State Hillary Clinton’s use of a private email server. Surely President Trump knew of those public statements when he repeatedly asked Mr. Comey to remain as FBI Director (as long as he could pledge “loyalty” and drop the Flynn investigation).

In this case, the White House’s initial reliance on the Rosenstein memo as the basis for the decision to fire Mr. Comey backfired because President Trump told NBC anchor Lester Holt that he had decided to fire Mr. Comey regardless of the memo. In many whistleblower-retaliation cases, however, these types of pretextual memos may be persuasive. Some judges even rely on such memos, which mask the real reason for a firing or other adverse action, to grant the company summary judgment and deny the whistleblower a jury trial.

On the other hand, creating a post-hoc justification for a retaliatory adverse action sometimes misfires by providing strong evidence of pretext and spurring a jury to award punitive damages. For instance, a former in-house counsel at Bio-Rad Laboratories recently secured more than $11 million in damages at trial in a Sarbanes-Oxley whistleblower-retaliation case. The jury awarded $5 million in punitive damages because Bio-Rad had backdated a negative performance evaluation of the whistleblower that the company drafted after it fired him.

Focus on the Whistleblower’s Alleged Misconduct

To distract attention from what may be obstruction of justice, President Trump and his attorney have focused on Mr. Comey’s leak to the press and have alleged that the leak was unlawful. This accusation seems frivolous because Mr. Comey did not leak classified information, grand jury material, or other sensitive information. Instead, he revealed that President Trump had conditioned his continued service as FBI Director on his agreeing to drop the investigation of Flynn. As a private citizen, Mr. Comey has a constitutional right to blow the whistle to the media about this matter of public concern. Mr. Comey did not reveal to the media information from FBI investigative files or classified information. Yet President Trump and his allies compare Mr. Comey to leakers who illegally disclosed classified information. This is an appalling accusation against the former head of a law-enforcement agency.

But this is another standard corporate defense tactic in whistleblower cases. To divert attention from the wrongdoing that the whistleblower exposed, the company uses its substantial resources to dig up dirt on the whistleblower. The company or its outside counsel examines the whistleblower’s timesheets and expense reports with a fine-tooth comb to find any discrepancy, reviews every email to find some inappropriate communication, and places all of the whistleblower’s work under a microscope to find any shortcoming.

Sue the Whistleblower and Initiate a Retaliatory Investigation

Firing Comey, concocting a pretextual basis for the firing, and branding him a leaking liar apparently was not sufficient retaliation.  So shortly after his testimony, President Trump’s personal attorney announced his intention to sue Mr. Comey and/or file a complaint with the Department of Justice Office of Inspector General (OIG).  I am skeptical that a civil action against Mr. Comey or an OIG complaint poses any real legal threat to Mr. Comey.  To the contrary, such a complaint would likely pose a greater risk for President Trump, including potential counterclaims and the risk of being deposed or questioned under oath by the OIG.

The misuse of legal process against corporate whistleblowers, however, is an especially powerful form of retaliation in that it can dissuade a whistleblower from pursuing their claims.  When I defend against this form of abuse of process, I am always struck at the seemingly endless resources that the company will spend to prosecute claims lacking any merit or value.  Fortunately, these claims can go awry by spawning additional retaliation claims under the whistleblower protection laws.  And a jury can punish the employer for subjecting the whistleblower to abuse of process.

Why Whistleblowers Deserve Strong Legal Protection

In light of Mr. Comey’s distinguished record, he will likely bounce back and rebuild his career. But most corporate whistleblowers never fully recover. Too often they find their careers and reputations destroyed. Even when whistleblowers obtain monetary relief at trial, they are usually blacklisted from comparable positions, especially if they work in a small industry.

Mr. Comey’s experience as a whistleblower is a stark reminder of what can happen to any employee who is pressured by a powerful superior to engage in unlawful conduct or to cover up wrongdoing. When intimidation tactics succeed, the public suffers. The company could be covering up threats to public health or safety, environmental contamination, financial fraud, defective products, or any other conceivable harmful wrongdoing.

Courageous whistleblowers who put their jobs on the line deserve strong protection. As Congress embarks on a mission to gut “job killing” agencies, let us hope it will spare the very limited resources that are spent enforcing whistleblower-protection laws. Without such a large backlog of whistleblower cases, OSHA could have, for example, addressed the complaints of Wells Fargo whistleblowers years ago, potentially curbing or halting the bank’s defrauding of its customers. And Congress should consider filling the gaps in existing whistleblower laws. If Mr. Comey “lacked the presence of mind” to explicitly reject the President’s improper demand for him to drop the Flynn investigation, then surely most employees would also be reluctant to refuse an order to commit an unethical or unlawful act.

After Mr. Comey’s testimony, Speaker Ryan pointed out that “[t]he President’s new at this. He’s new to government.” Mr. Comey’s testimony should be a lesson for the President about how to treat whistleblowers. To make America great again, the President should abandon the Rambo litigation tactics that apparently served him well in New York real-estate disputes, and instead view whistleblowers as allies, not as enemies. As Tom Devine of the Government Accountability Project and I argue in an article in the Emory Corporate Governance and Accountability Review, Draining the Swamp Requires Robust Whistleblower Protections and Incentives.

This post was written by Jason Zuckerman of Zuckerman Law.

Expert Witness Soap Opera Plays Out in Federal Court as Daubert Motions Fail

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A federal magistrate judge has found himself at the center of a soap opera – literally.

As a battle brews between two Spanish-language television networks over copyright claims to the substance of their respective soap operas, Miami Federal Court Judge Jonathan Goodman has found himself faced with having to evaluate experts on telenovelas.

A telenovela, which combines the Spanish words for “television” and “novel,” is actually slightly different from a typical soap opera in that it has a limited run, or an end. Telenovelas are basically novels that play out on television and are popular throughout Mexico, Latin America, Europe, and Asia.

These are just a few of the factual intricacies that Judge Goodman found himself learning about as he attempted to rule on the admissibility of the telenovela experts that both parties offered in the recent U.S. District Court for the Southern District of Florida case of Latele Television, C.A. v. Telemundo Communications Group, LLC, et al. 

For plaintiff, expert Dr. Tomás López-Pumarejo, a Brooklyn College professor and author of a “pioneering book on television serial drama,” is expected to testify that after performing a detailed literary analysis of the two telenovelas in question, he found substantial and striking similarities between the two shows and “leaves – in my opinion – no doubt that [El Rostro de Analía] is a remake of [María María].”

Contradicting López-Pumarejo is expert witness Dr. Carolina Acosta-Alzuru, a University of Georgia professor and author of a book on Venezuelan telenovelas. Acosta-Alzuru is expected to testify that the dissimilarities between El Rostro de Analía and María María “in terms of core plot development, triangle structure, character design, telenovela subgenre, and qualitative characteristics of dialogue far outweigh the limited similarities in the triggering plot.”

Plaintiff, however, told the court that defendant actually hired the author of María María, which originally aired in 1989, to develop El Rostro de Analía and “that the copyright infringement is so obvious that the public and press have designated El Rostro as a remake or retelling of María María.”

However, according to one Mexican actress, the practice of remaking a successful telenovela from the past is not unusual. Adriana Llabrés, who stars on the telenovela Yo No Creo En Los Hombres, tells BullsEye that recreating a new telenovela from one that was previously successful is something that happens all the time, including on her own show, which has been remade twice.

“Most of the soap operas are remakes, and they have been for the past few years,” Llabrés explained to BullsEye. “The writer agrees with the director as to what they want to keep from the past versions based in accordance with the public’s perceived desires. They then may adapt the story to suit the tastes of the viewers.”

What allegedly appears to be different in this case is that while the original writer and new director may have collaborated, the original copyright holder was allegedly left out of the equation.

Considering all of this comparative television evidence and dissecting these two programs, however, will not be a task that Judge Goodman will need to undertake immediately, as he is faced with more than one Daubert motion. Goodman is the judge, not the jury; he is the gatekeeper, not the ultimate umpire on these issues.

The Daubert Decisions

In his December 15 Omnibus Order on Daubert Motions, Goodman explained that his role as gatekeeper “is not intended to supplant the adversary system or the jury’s role because, as Daubert explained, ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’”

Goodman found that both parties will have “ample opportunity” to cross-examine and attempt to impeach the other’s expert witnesses and that it would be inappropriate for the court to exclude either side’s telenovela expert.

“There is no doubt that the three Daubert motions all generate significant challenges to the proposed expert testimony,” Goodman wrote. “Nevertheless, the Undersigned deems the legal assaults to relate more to the weight of the experts’ opinions and to their credibility, rather than the threshold issue of admissibility.”

Specifically in addressing the qualifications of plaintiff’s expert Dr. López-Pumarejo, the court refuted defendants’ contention that Dr. López-Pumarejo offered only “impermissible legal conclusions” that are the “ultimate issue in the case” and based on the “insufficient methodology” by which he examined only a small percentage of the two telenovela scripts. Dr. López-Pumarejo’s conclusion that María María and El Rostro de Analía were “substantially similar” was formulated after he reviewed 33 episodes of the former and 53 episodes of the latter, totaling about 23 percent of the combined telenovelas’ aired content.

“This alleged deficiency may well generate fodder for fruitful cross-examination but the Undersigned views the objection insufficient to support a request to flat-out exclude his testimony,” Goodman wrote, citing Oceania Cruises, 654 F.3d at 1193- “in most cases, objections to the inadequacies of a study are more appropriately considered an objection going to the weight of the evidence rather than its admissibility.”

Goodman notes that he expects defendants to rigorously cross-examine Dr. López-Pumarejo about his failure to review even a quarter of the telenovelas’ materials and that it is this cross-examination that will provide “sufficient protection” to the parties and to overall fairness of the trial.

In the same manner, the court addresses plaintiff’s complaints and corresponding Daubert challenges to defense expert Dr. Acosta-Alzuru. The court notes that despite plaintiff’s claims that Dr. Acosta-Alzuru is unqualified as an expert, the professor has presented numerous lectures to U.S. State Department officials in Venezuela on her various studies of Spanish-language telenovelas and is the only expert who actually reviewed all 376 hours of the two TV shows, producing summary recaps and plot diagrams of each episode.

“The mere fact that she has not written a telenovela herself is insufficient to preclude her expert testimony, [nor is she] subject to exclusion as an expert merely because she is not a ‘literary expert’ or an expert on copyright infringement,” Goodman wrote. “Moreover, Acosta carefully addressed the existence of unprotectible scène à faire even though she did not use that specific term. Latele can certainly question her at trial about her unfamiliarity with the term, but it has not convinced the Undersigned that Acosta’s unfamiliarity with a few legal terms is reason enough to exclude her, especially given her substantial background in telenovela analysis.”

Cash and Clichés

A scène à faire, French for a “scene that must be done,” is a scene that is rather obligatory or necessary for the story or genre, and in copyright law, this term refers to a creative work that is unprotected because of this mandated or necessitated role.

Perhaps every romantic comedy has to have a love triangle, every action movie a chase scene, and every tragedy a tragic death. Copying such plot twists can be no copyright infringement.

However, the question for the Latele v. Telemundo jury will be whether or not the story is told differently. They will have full exposure to both sides’ expert testimony and perhaps hours of dramatic television ahead.

How much money Telemundo made as a result of El Rostro is also in dispute and subject to differing expert witness interpretations. Defendants retained CPA expert Ben Sheppard to refute the report of plaintiff expert Steven Berwick regarding the apportionment of Telemundo profits to the show and of the amount that would be attributable to the copyright-infringing portions thereof in the event that liability is, in fact, found.

Judge Goodman denied plaintiff’s Daubert motion to exclude expert witness Sheppard, citing similar reasons as stated above and saying that cross-examination and jury instruction shall cure any alleged deficiencies in the expert analysis. As for defendants’ omnibus motion in limine to exclude Berwick’s opinions, which was not a Daubert motion, the judge will decide in a separate order.

Defendants have until February 10, 2015, to fulfill plaintiff’s discovery demands.

When it comes to the copyright claims between two TV shows, do we even need experts to testify as to “substantial similarities,” or should we simply let laypeople and juries decide if two shows are too similar to have avoided copyright infringement?

ARTICLE BY

Ryan Thompson, Esq.
OF
IMS ExpertServices

Cameras Coming to an Illinois Courtroom Near You: What Are the Rules and What Impact Might They Have

Heyl Royster Law firm

Probably everyone saw portions of the O.J. Simpson and George Zimmerman trials, because each was a high profile case broadcasted on live television. Now, cameras are coming to Illinois courtrooms.

In January 2012, the Illinois Supreme Court approved the use of“extended media coverage” in the courtrooms of judicial circuits that applied for such coverage and received approval. “Extended media coverage” essentially means the use of still cameras, video cameras, and audio recording. Over time, 40 Illinois counties have applied for and received approval to allow extended media coverage in their courtrooms.

Attorneys and clients must familiarize themselves with the applicable rules for extended media coverage, and must consider and prepare for the practical implications if cameras will be present at trial. While such media coverage will likely be limited to criminal cases in most instances, it will inevitably occur in high profile civil cases, including some medical malpractice cases. And, if extended media coverage proves to benefit one side or the other over time, attorneys representing those parties will undoubtedly push for more and more coverage.

Who or What is Considered “Media”?

Historically, the media may have been thought of as newspapers and television stations. Today, however, the term media may include biased blogs, social media, or other similar internet media that does not follow basic standards of journalism. Luckily, Illinois rules operate with a more historical definition of media, thus limiting who may request to cover the trial and hopefully ensuring a certain amount of fairness in reporting. In order to be credentialed under the rules, a media member or organization must be regularly engaged in news gathering and reporting, cover judicial proceedings on a consistent basis, and must regularly follow basic journalistic standards for ethics, accuracy and objectivity.

Request for Extended Media Coverage

Extended media coverage is not allowed as of right. Instead, a credentialed media member must make a written request and have that request granted by the court before extended media coverage is allowed. The request for media coverage must be made at least 14 days before the trial or hearing the media member wishes to cover. Further, the written request must be provided to all attorneys. The 14 day requirement allows the defense time to consider the request and make appropriate objections prior to the trial or hearing.

Objection to Extended Media Coverage

Objections to extended media coverage may be raised by the parties to the lawsuit and may also be raised by witnesses. In either case, a written objection is required, but the timing of the objection can differ for parties and witnesses. If a party, i.e. plaintiff or defendant, wishes to object, his written objection must be filed at least 3 days before the beginning of the trial or hearing. Witnesses must be advised by the attorney presenting their testimony of the right to object, and the witness must file his objection before the beginning of the trial or hearing. The rule also allows the judge to exercise discretion to consider objections that do not comport with the timing requirements.

Once an objection to extended media coverage has been made, the judge may rule on the basis of the written objection alone, or he may choose to hear evidence. At his discretion, the judge may choose to hear evidence from a party, witness, or media coordinator before ruling.

It would be inadvisable to object to media coverage in a trial where no member of the media has made a written request for coverage. Such a pre-emptive motion would be likely to draw media interest where none previously existed.

Technical Requirements and Sharing Equipment

Technical requirements for the cameras and other equipment are provided in the rules. The overall theme of these rules is to ensure that any equipment is not obstructive or disruptive during the trial or hearing. The equipment cannot produce distracting lights or noises during operation. Further, no flashbulbs or other lighting may be used to aid the cameras.

The rules limit the amount of equipment allowed in the courtroom, again with the overall goal of limiting obstructions and distractions. A maximum of two still cameras and two television cameras are allowed, but the judge may choose to limit that to only one still camera and one television camera. Only one audio recording system is permitted. Obviously, if multiple media outlets wish to cover the trial or hearing, they may be required to share the video and audio stream under the rules.

What May be Filmed or Photographed

Most trials and other hearings may be recorded, with exceptions limited mostly to the area of family law. Importantly though, several portions of the trial cannot be recorded. Jury selection cannot be recorded at all, and the media is forbidden from filming or photographing individual jurors or the jury as a whole. This is an important protection provided in the rule, because if a juror is assured that he cannot be recorded, the juror should feel less inclined to consider public opinion in deciding the case. Further, the media may not record interactions between the lawyer and client, between opposing lawyers, or between the judge and the lawyers, i.e. sidebars. And, no materials, papers or exhibits can be recorded unless they are admitted to evidence or shown to the jury. These limitations are obviously important to protect the confidential attorney-client relationship, among other things. Finally, no filming is allowed during recesses or in the public areas or hallways, which provides some known off-camera time.

Live Blogging

A judge also has discretion to allow live blogging during a trial or other proceeding, which does not include visual or audio recording. The most typical example of live blogging would be tweeting, but includes any transmittal in text form of testimony, proceedings, and summaries from the courtroom. Again, only credentialed news media are allowed to engage in live blogging.

The rule allowing for live blogging simply says that it may be allowed upon request. It does not provide a time-period within which the request must be made, and does not provide for objections. However, the decision to allow live blogging is left to the “absolute discretion” of the judge, and therefore, it seems reasonable that a judge would also be vested with the authority to allow objections and consider whatever he deems necessary. In any event, an objection can always be stated on the record, whether or not the judge chooses to consider it.

Required Jury Admonishment and Jury Instruction

Jurors cannot be photographed or filmed, with the apparent goal of minimizing any influence or consideration of public opinion. Carrying this theme further, the rules require the trial judge to read an admonishment to the jury at the beginning of the trial and an instruction to the jury at the conclusion of trial regarding the media coverage. Of course, the admonishment and instruction advise the jury that they should not be influenced by or draw inferences based upon the presence of the media. Also, importantly, the admonishment advises the jury they cannot be photographed or filmed as a group or individually, and it advises the jurors to inform the court if the cameras are distracting or cause an inability to concentrate.

Practical Considerations and Potential Effects

At the outset, the lawyer and client should consider whether they do or do not want cameras in the courtroom. In most cases, the defense would prefer cameras not be present so that the trial is focused exclusively on liability and damages, not extraneous issues. If a request for extended media coverage is made, the lawyer and client should ask themselves why the request is being made, and whether a written objection should be filed. If an objection will be filed, however, it should be based upon specific facts or concerns in that case. The Illinois Supreme Court and local judicial circuit have already determined, from a policy standpoint, that cameras should be allowed if the rules are complied with. Therefore, objections based upon general concerns that cameras may be disruptive or may have a negative impact on the jury are likely to fail.

Conclusion

While most defendants and their lawyers are opposed to cameras in the courtroom, it appears that they are here to stay for the foreseeable future. Given the national trend toward cameras in the courtroom and instantaneous media, it’s hard to imagine that these rules will ever be reversed. Therefore, attorneys and clients will need to carefully consider how to operate within the rules in a way that most favors the presentation of their case.

ARTICLE BY

Matthew Thompson
OF
Heyl, Royster, Voelker & Allen, P.C.