$4.5 Million Disability Discrimination Verdict Against Auto Dealer Who Failed to Investigate

Florida-300x300 A federal jury in Florida has awarded $4.5 million against an auto dealer for claims of disability discrimination under the Florida Civil Rights Act (FCRA). Axel v. Fields Motorcars of Florida, Inc., No. 8:15-cv-893-17JSS (M.D. Fla. Feb. 22, 2017). The verdict consisted of $680,000 in lost wages and benefits, $600,000 for emotional pain and mental anguish, and $3,220,220 in punitive damages. The jury found the employer discriminated against Michael Fields after he returned from a medical absence for treatment of kidney cancer. The jury rejected the plaintiff’s claims of age discrimination pursuant to the Age Discrimination in Employment Act.

Axel was employed by Fields Motorcars of Florida, Inc. for approximately 10 years. According to court records, he had not received any disciplinary or corrective action in that time. To the contrary, he had received awards for his performance. After Fields was diagnosed with kidney cancer, he underwent experimental treatment and was able to return to work where he was capable of performing all of his duties. Axel further claimed that he was on pace to have the most productive year at Fields. However, he was repeatedly passed up for promotions, and was demoted and terminated for failure to follow company policies and processes.

In its decision to terminate Axel, the employer relied upon a letter that dated back to the beginning of his employment, approximately 10 years earlier. A Vice President and General Manager claimed that Axel had forged a document that provided his son access to auto auctions without authorization. He performed no independent investigation and never spoke to Axel prior to his termination. Axel claimed that while he signed the letter, he had authorization to do so from management. There was no suggestion that Axel’s son improperly used his authority to purchase cars on behalf of Fields.

This case highlights the importance of thorough investigations by management prior terminations, especially with respect to employees with a protected status or disability and those who bring an internal complaint of discrimination. When a company lacks the expertise to conduct an investigation on its own and fails to enlist assistance, it can pay the price at trial.




Using Electronically Stored Information in Employment Trials

tablet          In employment litigation, evidence now admitted during most trials routinely includes electronically stored information (ESI), including email communications and documents the receipt of which is often acknowledged with a mouse click. Trial counsel must know how to authenticate such ESI to ensure the court will allow it into evidence. Counsel also should be aware of the pitfalls when ESI has been intentionally or unintentionally altered, thus impairing admissibility.

Unfortunately, in addition to hacking and cyberattacks, we have seen that technology can be abused by an unscrupulous litigant: Email communications can be falsified, sometimes requiring  expert testimony to uncover the wrongdoing. Similarly, audio-recorded telephone conversations can be “spoofed,” reflecting a call that was actually made by another person. This falsely misrepresents the caller’s identity in commercial transactions. Likewise, video-recorded events can be digitally-edited to portray events in a deceptive context.

In addition, ESI can be damaged in storage or mangled in transmission with inadvertent computer-generated changes in spelling, punctuation, layout, or deletion. Viruses and malware can wreak havoc with ESI by creating or transmitting bogus documents, or by altering or deleting legitimate business records.

ESI is often a crucial component of evidence that comes to light during pretrial discovery. Federal Rules of Evidence 901 and 902 provide time-tested standards for assessing authenticity that courts in recent years have applied to determine whether the proponent of ESI has produced “evidence sufficient to support a finding that the item is what the proponent claims it is.” FRE 901(a). Examples of successful authentication methods include testimony of the person who created, transmitted, or received the ESI that the contents is what it purports to be. FRE 901(b)(1).

Traditional methods of authenticating evidence are not sufficient in litigation where only forensic experts are competent to testify to issues beyond the ken of lay factfinders. Examples include whether a person or virus created or transmitted a particular document, whether a particular document was backdated, edited, or deleted, or indeed whether viruses lodged within an electronic device are capable of creating or transmitting a disputed document. United States v. Browne, 834 F.3d 403, 415-16 (3d Cir. 2016), cert. denied, 196 L.Ed.2d 572 (2017) (no reversible error due to proper authentication through extrinsic evidence from other chat participants).

Jackson Lewis attorneys are available to answer inquiries regarding trial strategy and other concerns on use of evidence in workplace litigation.



How Big Data Can Predict The Outcome of An Employment Trial


             The legal industry has turned to data analytics to keep litigation costs down. Companies can analyze litigation data on courts, judges, opposing counsel, and substantive evidentiary materials that affect liability. They are then better positioned to spot trends, predict exposure, and make strategic litigation decisions with greater efficiency.

            In the Digital Age, a company’s data footprint can provide a treasure trove of information. Employees, contractors, and vendors create data. Even more data is created in a gig economy that includes part-time, remote workers, and independent contractors. The task of mining the data will only become more challenging. Companies need to understand not only data preservation, confidentiality, and privacy, but also the effect of data that will become evidence at trial.

            This territory was pioneered by companies such as Lex Machina, https://lexmachina.com/, which focused primarily on intellectual property cases. After the company was acquired by LexisNexis in 2016, it expanded its reach to include securities and antitrust cases, with plans for employment applications. Legal analytic applications for the existing areas provide early case assessments, the prospects of success on motions, and similar analyses. Bloomberg Law has also introduced Litigation Analytics to provide insights on federal judges and law firms in the federal courts. Significantly, the ability to mine litigation dockets, e-discovery databases, and other documents through analytics can provide quick and efficient information regarding outcomes.

              With the formation of its Data Analytics Resource Group, https://www.jacksonlewis.com/practice/data-analytics, Jackson Lewis is well-positioned to provide clients with an array of analytics services. Eric Felsberg, a Principal in the firm’s Melville, Long Island office, and the National Director of the Group, leads a multidisciplinary team of lawyers, data scientists, and statisticians that offers clients many services, including compliance assessments, litigation support, and talent analytics. These services provide clients with enhanced efficiency and exposure prediction. For example, in wage and hour cases, the firm regularly provides liability assessments by mining and analyzing digital footprint data, such as GPS logs, CPU usage, and door card swipe information. Leveraging the power of detailed data analysis in a privileged and confidential process allows companies to drill down on the evidentiary issues and proofs that matter at trial.

           Such processes are regularly used to determine exposure in class actions and single plaintiff cases, providing invaluable and actionable information.