Thread by @gokpkd

If a federal judge ever began a court order (94 pages long!!!) about me this way, I might just walk into the ocean. I'd beg you to yeet me into the sun's fiery maw as a mercy.

But it's not about me, so instead, you can join me as I schadenfreude my way through this order. 🧵

https://twitter.com/Law360/status/1462798234406072323

Plaintiffs sued Outokumpu Stainless USA for FLSA violations. Outokumpu had a byzantine system for calculating pay, and its pay records were critical to Plaintiffs' claims.

Seems straightforward enough. Oh, wait, what's that?

(Here's the order, btw)
storage.courtlistener.com/recap/gov.usco…

The court begins its order by just absolutely bashing the Defendant over the head. Delay, obfuscation, outright ignoring court orders, a "calculated sabotage of the judicial process."

The court notes that it can ether your case for litigation misconduct under the court's inherent power.

Not sure I've ever seen the word contumacious before, so that's very exciting.

Judge Beaverstock says a finding of bad faith is "essential" to the inherent power to sanction. What's bad faith? When a fraud has been practiced upon" the court or where "the very temple of justice has been defiled." Also, knowingly/recklessly raising frivolous arguments.

(Also, I have Thoughts about perpetuating this mythology of our courts as 'temples of justice,' but that's a thread for another time I suppose.)

Anywho, Judge Beaverstock notes that several courts have held that the need for sanctions is greater where the misconduct relates to the linchpin issue of the case, as Defendant's time and pay records do here.

Shoutout to FRCP 37, which permits sanctions for violating a discovery order!

Rule 37 requires the court to find that there was a willful or bad faith failure to comply with a discovery order, that the party moving for sanctions was prejudiced by that failure, and that lesser sanctions wouldn't work to punish the past conduct & ensure future compliance.

The court found "clear and convincing evidence of specific misconduct," more precisely that the court had ordered the defendant to produce the pay and time records TWELVE TIMES OVER THREE YEARS.

LOL

Then the court starts getting into detail. The court first ordered production of the time and pay records in September 2018, as it does at the outset of every FLSA case. Outukumpu agreed to produce that information and represented in Oct. '18 that it would be soon.

It was not.

Although Outukumpu produced limited (and apparently inaccurate) pay data in October 2018, it failed to produce initial disclosures, rog responses, or docs by a court-imposed deadline in May 2019.

I cannot tell you how hard I'm cringing right now.

The Plaintiffs filed a Motion to Compel over a month later, in which they said Outukumpu's attorney (at Littler, HEYO!) claimed "there had been some sort of mistake, confusion, or misunderstanding."

Oh, and Outukumpu NEVER RESPONDED TO THE MOTION TO COMPEL.

SO THE MAGISTRATE GRANTED IT AND STRUCK FIVE AFFIRMATIVE DEFENSES AS A SANCTION.

Which, hi, yes, hello, I am dying to know what was going on in Outukumpu's legal department. I managed a ton of litigation (on top of lots of other stuff), and how many times did we just blow discovery deadlines and, like, not respond? Or outright ignore a motion to compel?

And if I'd ever found out my outside counsel hadn't even bothered filing a response to a motion to compel?

The court ordered Outukumpu to produce the records a 4th time, and Outukumpu began a "pattern" of misconduct persisting until March 2021 where it would pretend to be confused about the requests, suggest a meet & confer, agree on all issues, promise to produce, and then... nada.

After the order on the motion to compel, Outukumpu served discovery responses that apparently were largely objections to producing the pay and time records. The parties went back in front of the magistrate, who ordered Outukumpu (a 5th time) to produce the records by 9/6/19.

Outukumpu sent garbage responses, and the Plaintiffs filed a Second Motion to Compel. Mediation was upcoming, and Outukumpu suggested that the Magistrate didn't really need to worry because if the case didn't resolve at the upcoming mediation, then it would produce the docs.

At the hearing on the 2nd Motion to Compel, Outukumpu agreed to produce the records before a 2nd mediation scheduled for December. Outukumpu's counsel from Littler apparently complained ✨on the record✨ that it was a lot of info for 290 people. The case was 18 months old.

tfw you've had months and months to get basic data for a case but it's hard

So at the end of THAT hearing, the Magistrate ordered the parties to put together a joint order, but... the court never entered an order because OUTUKUMBU FAILED TO RESPOND TO PLAINTIFFS' EDITS.

The fucking audacity to be at the wrong end of a second motion to compel, having already had multiple of your affirmative defenses struck, the judge telling you to draft an order, and just being like

Shockingly, Outukumpu didn't produce the docs like it said it would by Dec. 2019. In the interim, the Plaintiffs filed a THIRD motion to compel bc in its rog responses, Outukumbu basically either objected to the request as overly broad or didn't respond at all.

So the magistrate had another hearing and spent an hour!!! and a half!!!!! reviewing each disputed rog and RFP!!!!!
I am just writhing with second-hand embarrassment here.

Outukumbu's attorney, meanwhile, was the real live version of the TikTok "Is it me? Am I the drama? I don't think I'm the drama. Maybe I am - am I the villain?" trend.

tiktok.com/@ladygaga/vide…

The Magistrate granted in part and denied in part the 3rd motion to compel, and wholly chastened, Outukumbu totally produced everything it was supposed to in a timely manner.

lolololololol jk jk

The Magistrate ordered the parties back to court in January 2020, and Plaintiffs filed what appears to be an FYI doc (not any sort of motion) basically saying Outukumbu hadn't done shit.

Love that Outukumpu again just didn't bother responding to the 3rd Motion to Compel

So, for the first time, Outukumpu claimed there was a single, lonely employee trying to pull the records, and it was too burdensome.

The Magistrate, who somehow hadn't self-combusted by this point, ordered Outukumpu to produce the documents in batches instead of all at once and tut tutted the parties that it was time for the deadlines "to start meaning something."

Fast forward to the deposition of Outukumpu's Corp Rep / Payroll Specialist, Melissa Pledger. She dropped a bomb on the Plaintiffs. The paltry "verified pay summaries" Outukumpu produced at the beginning in 2018 & which the parties relied on to formulate settlement positions?

Fast forward to the deposition of Outukumpu's Corp Rep / Payroll Specialist, Melissa Pledger. She dropped a bomb on the Plaintiffs. The paltry "verified pay summaries" Outukumpu produced at the beginning in 2018 & which the parties relied on to formulate settlement positions?

Well, they were wrong. In a lot of ways. Like suggesting people had one rate of pay when in fact they had many. And producing a summary in black and white that needed to be color coded to make sense.

(What's most amazing about this is that we're only up to March 2020 - this shit goes on for another YEAR.)

The parties went back to the judge in May 2020, where Plaintiffs told the Magistrate that when Outukumpu produced docs in tranches per the early order, it sent spreadsheets containing 123 columns of data per employee per pay period... and nary a single pay rate in sight.

At which point, Outukumpu first did a "Whaaaat???" followed by a, "Oh, so your honor, we totes misunderstood your 800th order about this."

Iconic, actually.

The Magistrate . . . . entered another order.

Then Judge Beaverstock turns to Outukumpu's failure to produce docs related to incentive plan payments.

I'll spare you the details. tldr Outukumpu produced the wrong stuff, didn't produce the right stuff, and just generally dicked around bc stick with what you know right?

But kids it turns out J. Beaverstock has been holding out on us. On page 63 of the Order, we get into the deets of how Outukumpu and its counsel lied to the court and tried to throw ADP directly under a very big, very fast bus.

(ADP is a giant payroll provider, for those who don't know.)

Rewind to Oct. 2018, and Outukumpu said what it actually needed were ADP's records to respond to Plaintiffs' discovery. It kept saying that, including that it would have to "chase down" ADP and that ADP "has not been very helpful."

Outukumpu asked to send a subpoena to ADP for its own records, claiming it had sent two letters already, would send a third, and isn't that pesky ADP just the worst?

Over the course of months, Outukumpu painted ADP as non-responsive to its subpoena.

In majestic FAFO (Fuck Around & Find Out) fashion, the court issued a show cause order to ADP on Feb. 19, 2021 directing an ADP corporate rep to show for a hearing on March 5, 2021.

Outukumpu waited until MARCH 1, FOUR DAYS BEFORE THE HEARING, to notify ADP.

Shoutout to the ADP in-house counsel who got that e-mail! 😘

THEN Outukumpu told ADP the hearing would be cancelled if ADP gave it a spreadsheet of the data. So ADP did within, it looks like, 2 days.

Outukumpu's counsel badgered the court THE NIGHT BEFORE THE HEARING to find out if the hearing was on (it was) and whether they needed to appear in person (they did).

At which point THE NIGHT BEFORE THE HEARING, Outukumpu told ADP it needed a rep there in person.

Me literally at this point

So, reading between the lines here, ADP shits itself, calls chambers the morning of the hearing to confirm, yep, you need to be here, shits itself again, and scrambles to retain counsel HOURS BEFORE A SHOW CAUSE HEARING IN FEDERAL COURT.

Everything is fine, truly.

So the court sets a For Real For Real Show Cause Hearing for the following week, on March 12, 2021. At which point, ADP was like, oh fuck this, and filed a brief showing how epically Outukumpu misled everyone.

If Outukumpu had wanted the data, it could have had it.

Some of the most incredible fucking around and finding out I've ever seen, tbh.

Oh dear.

Judge Beaverstock was not impressed.

And it's break time for dinner with the kids.

Now that I've fed my new frogs, let's get back to it.

https://twitter.com/gokpkd/status/1462934908414930954?s=20

Next up is spoliation, a word that struck terror in my little heart as in-house counsel.

If you're not familiar with spoliation, it is a one-way ticket to the Bad Place.

It is Not Good when, years into a lawsuit, you're asked by a federal judge what your client's document retention policy is related to critical records the other side's been seeking from you for the entirety of the case, and your response is idk?

Extremely Not Good: when you also have no idea whether your client issued a lit hold letter to preserve relevant documents or complied with it.

Outukumpu screwed around long enough stalling discovery that ADP no longer had records it would have if timely requested.

The court concluded these records happened to be those from Outukumpu's period of greatest exposure.

Bam. Spoliation.

Next, Judge Beaverstock noted that Outukumpu was "no stranger to complex federal litigation" with a case that went to SCOTUS in 2020.

And also, "This is not the first time Defendant's subversive and undermining tactics resulted in a default judgment entered against it."

Outukumpu and its predecessor had been sanctioned previously, it appears for breaching an NLRB settlement agreement and refusing to cooperate in scheduling depositions of its employees. Same Vice President; same outside counsel from Littler.

This is the part where, if I'm in anyway involved on behalf of the Defendant, I abscond under cover of darkness to a non-extradition country.

Next, the court considered whether lesser sanctions would be effective.

Interestingly, the Magistrate didn't believe there was bad faith here-- just negligence. Which, jeez.

Judge Beaverstock wasn't biting, concluding that the Magistrate didn't know the full extent of the Defendant's misconduct at the time.

Proclivity for Misconduct is my newest band name.

Judge Beaverstock then concluded that Outukumpu undermined the efficient administration of justice and "soundly defeated the goals of the collective action process through its discovery abuses."

The court also found that it needed to deter other employers from "this sort of recalcitrance." Outukumpu still runs the Mill at which Plaintiffs work, benefitting from damages it hasn't had to pay, and potentially continuing questionable pay practices.

So here we are, page 92. Judge Beaverstock ordered Outukumpu to pay Plaintiffs' attorneys' fees and expenses incurred as a result of Outukumpu's discovery misconduct.

He directed the Clerk of Court to strike Outukumpu's Answer and terminate various of Outukumpu's motions.

And the court set a hearing for 12/15/21 to discuss proving up Plaintiffs' damages. That should be fun.

Now, I'm settling in to read the For Real For Real Show Cause Hearing transcript, which local hero @KathrynTewson bought:

https://twitter.com/KathrynTewson/status/1462929312592498688

The reviews are pouring in.

https://twitter.com/estockbridge/status/1462974650598756353

Here's a question. At what point does the firm retain counsel?

In my early associate days, our opposing counsel may have done some pretty shady stuff, and by the time of the show cause hearing, his firm had retained another firm specializing in malpractice to appear.

IT'S NOT GOING WELL STRAIGHT FROM THE JUMP. I think this is federal judge for STFU?

Gavin Appleby is the Littler lawyer representing Outukumpu. Matthew Jackson is one of the lawyers who appeared for ADP (a now presumably former Littler client?).

CRINGE CRINGE CRINGE CRINGE CRINGE
(this is ADP's counsel talking)

OH MY GOD. So ADP gets the subpoena in July from Appleby (a Littler lawyer). Alice Quinn, a Senior Legal Assistant at ADP, hadn't worked with Appleby before but knew Littler represented ADP.

ADP got the subpoena on 7/29/20. It sent docs to Appleby and Outukumpu in August. And, as of the hearing in March 2021, ADP's counsel didn't think they'd been provided to Plaintiffs.

SCREAMING JUST THROW ME INTO A BLACK HOLE IF A CLIENT EVER SAYS THIS ABOUT ME

Judge Beaverstock to Appleby:

Lots of dissembling by Appleby where it seems like you should fall on your own sword before the court can cut your head off

YIKES. "Ian" is Plaintiffs' counsel. The Plaintiffs who have (per the court) kept working at Defendant's mill since their lawsuit was filed in 2018, apparently significantly underpaid and waiting on Defendant to produce basic info relevant to their claims.

Well, that's not an answer about whether you did your lit hold.

God this is so cringe.

My husband: What are all these Sephora charges?

Me:

The audacity. But I guess not surprising from someone who apparently didn't bother to respond to multiple motions for sanctions or entire court orders?

My husband: What's this about Sephora Rouge status?

Me:

Law students, this is a subtle indication that your case is going straight down the toilet to the depths of hell. "Okay."

I feel like this is a "believe them when they tell you who they are" moment. Appleby says he wishes he "wouldn't have said that on the brief"-- that ADP was being difficult-- "because this whole thing started with one sentence in one brief."

He'd been getting away with it.

The Plaintiffs' attorney gets his turn, and yep. Nails it.

Nice burn by the Plaintiffs' attorney: I have to tell you what Defendants gave us because they can't get their shit together enough to do it themselves.

Plaintiffs' attorney has me convinced.

Plaintiffs' attorney said he'd written one thing down "as the most important thing I thought I should say today":

And that, I think, was so well done. There are real people here. Not just discovery deadlines and PDFs versus Excel spreadsheets. Real people in the middle of a pandemic waiting on Outukempu and Littler to fulfill their basic obligations as litigants.

And Appleby's ACTUAL RESPONSE to that, which is so, so damning, is well la dee da human suffering, that shit wouldn't be admissible at trial, so whatever

The Court (another win for Ian Rosenthal):

So the judge asks ADP to prepare info about how much it spent dealing with all this nonsense, comments that Appleby "seem[s] like a nice gentleman" (does he? because he is so polite in his dissembling?), and suspend's Appleby's pro hac admission

The Ms. Swain referenced is a Littler attorney in the Birmingham office. So big yikes there. The court had concerns about her, too:

The court also dumps on a 2014 grad out of Littler's Miami office but declines "to make that decision at this time" regarding her. So good luck to her, I guess.

In a lengthy soliloquy, Judge Beaverstock briefly touched on the conflict issue re Littler / ADP / Outukumpo but ultimately left it alone before going on about revoking the pro hac, etc.

Yet when he asks if there are any Qs, Appleby jumps in with a ITS UR FAULT:

when I tell you my jaw dropped

You'll be surprised to learn that the judge's reaction is oh hell no, sir:

So that's about it on the hearing transcript. Might read ADP's filing tomorrow for hot conflict goss.

Anyway, my lord what a mess. Just stunning misconduct and recalcitrance. Don't be that lawyer.