Reeves v. World Championship, et al

MOTION

N.D. Ga.January 14, 2003

A This motion arises out of the calculated discovery abuse of question that WCW's representations in this regard were false - FILED I'' ('L'EfilCS OFFICE Yo a~~"'N~L THE UNITED STATES DISTRICT COURT LUTHER D ~,J~NJ, Clerk FOR THE NORTHERN DISTRICT OF GEORGIA By; ATLANTA DIVISION D"iYow Davis v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1716-CC ; Saengsiphan v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1719-CC ; Speight v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1718-CC : Worthen v . World Championship Wrestling, Inc . and Turner , Sports, Inc . , Civ . File No . 1-00-CV-1717-CC ; Reeves v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1720-CC ; Easterling v . World Championship Wrestling, Inc . and Turner Sports, Inc . , Civ . File No . 1-00-CV-1715-CC Onoo v . World Championship Wrestling, Inc ., Turner Sports, Inc . , Civ . File No .rw`V°'a36B=CC Norris v . World Championship Wrestling, Inc ., Turner Sports, Inc . , Civ . File No . 1 :00-CV-0369-CC Walker v . World Championship Wrestling, Inc ., Turner Sports, Inc . , Civ . File No . 1 :00-CV-0367-CC Claude Patterson v . World Championship Wrestl i ng, Inc ., Turner Sports, Inc . and Turner Entertainment Group, Inc . , Civ . File No . 1 :01-CV-1152-CC PLAINTIFFS' MOTION TO STRIKE ANSWERS OR FOR OTHER APPROPRIATE SANCTIONS AND MEMORANDUM OF LAW IN SUPPORT THEREOF I . INTRODUCTION AND STATEMENT OF RELEVANT FACTS The Basis for this Motion Defendant World Championship Wrestling, Inc . ("WCW") . Specifically, as will be shown, WCW has purposefully withheld employee-race information critical to Plaintiffs' disparate impact claims under the ruse that it simply did not have access to that information . Recent developments establish beyond Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 1 of 76 "Defendants have repeatedly explained to the Plaintiffs that these individuals were independent contractors . . . not employees . Accordingly, WCW did not record or track the race or ethnicity of these individuals and does not have records reflecting these individuals' races or ethnicities[ .]" - 2 - it can, and has, availed itself of access to that information in other litigation . Thus, Plaintiffs present this motion seeking appropriate sanctions for WCW's purposeful obstruction of Plaintiffs' discovery efforts . B . The Nature of the Information Purposefully Withheld by WCW WCW has insisted throughout this litigation that it is unable to determine the races of its own wrestlers . See, e .g . , April 23, 2002 correspondence to the Court jointly submitted by the parties, attached hereto as Exhibit "A," at p . 3 .1 WCW's has strategically used this supposed informational vacuum in its efforts to undermine Plaintiffs' statistical analysis to prove unlawful discrimination on the basis of race in this case . See, e .g . , Reid v . Lockheed Martin Aero . Co . , 205 F .R .D . 655, 667 (N .D . Ga . 2001) ("Disparate impact is generally established by statistical evidence, which should show that there is a legally significant disparity between (a) the racial composition, caused by the challenged employment practice, of the pool of those enjoying a . . .job benefit ; and (b) the racial composition of the qualified applicant pool")(internal quotations and citations omitted) . Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 2 of 76 - 3 - ( t On December 17, 2002, WCW filed summary judgment motions in the Onoo , Walker , and Norris matters pursuant to the Court's December 4, 2002 scheduling Order . WCW attached to its briefs filed in support of those motions an Order granting WCW's motion for summary judgment in a previous Title VII action, Ross v . World Championship Wrestling, Inc . , 1 :93-CV-1206-JEC (the "Order") . A true and correct copy of the Order is attached hereto as Exhibit "B ." In that Order, the Court includes within its findings of fact the following : During the period of Plaintiff's association with WCW, defendant employed approximately 334 male wrestlers . The vast majority (approximately 300) of these male wrestlers were white . Plaintiff's rate of compensation was higher than approximately 278 of these new wrestlers . See order, p . 9 . Significantly, because the plaintiff's opposition to WCW's summary judgment motion was procedurally deficient, the Ross Court accepted as true WCW's Statement of Material Facts Not in Dispute ("Statement") . Id ., p . 4 . A true and correct copy of the Statement is attached hereto as Exhibit "C ." In the Statement, WCW provides specific racial identification information regarding wrestlers, some of whom were still with WCW when it closed in 2001 .2 Specifically, WCW took the 2 WCW identified Rick Flair, Lex Lugar and 13 other wrestlers as white and two as black . See Statement, 49[ 7-10 . Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 3 of 76 - 4 - c position, supported by a sworn affidavit, that although it "d[id] not keep records" of its wrestlers, "a large majority of the [wrestlers] were white ." See Statement, 9[ 11 . This assertion is plainly contrary to the representations made to this Court and to Plaintiffs' counsel that WCW was incapable of identifying the race of its wrestlers because of its lack of racial record-keeping . Indeed, the representation made to the Ross court makes clear that WCW is capable of identifying the race of the "large majority" of its wrestlers . The Order and Statement plainly disprove WCW's protests in this case that it is incapable of determining the race of its own wrestlers and providing that information to Plaintiffs . Indeed, alleged lack of records notwithstanding -- it is now evident that WCW's failure to provide this information in the present case was due not to a lack of ability, but rather to a lack of inclination . Plaintiffs have sustained undue burden and tremendous expense as a consequence of WCW's stonewalling . This is precisely the type of discovery gamesmanship that authorizes the imposition of sanctions . II . ARGUMENT AND CITATION TO AUTHORITY Fed . R . Civ . P . 37 (c)(1) provides in relevant part : A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2) is not, unless such failure Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 4 of 76 - 5 - is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed . In addition or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions . See Fed . R . Civ . P . 37(c)(1) . When a party "fails to cooperate in discovery," Rule 37 permits the court "to strike out pleadings and render default judgment against the disobedient party ." See Buchanan v . Bowman , 820 F .2d 359, 361 (11th Cir . 1987) . See also Malautea v . Suzuki Motor Corp . , 148 F .R .D . 362, 373 (S .D . Ga . 1991) (striking answer where defendant engages in "bad faith decision to avoid revealing the truth at all costs") . In addition to the authority to sanction established by Fed . R . Civ . P . 37, "[e]very court has inherent power to sanction attorneys and litigants if necessary to manage the court's affairs ." Id . at 370 . See also Carlucci v . Piper Aircraft Corp . , 775 F .2d 1490, 1446 (11`h Cir . 1985)("It is beyond peradventure that all federal courts have the power, by statute, by rule, and by common law, to impose sanctions against recalcitrant lawyers and parties litigant") . In the present case, Defendant WCW purposefully withheld critical information to frustrate Plaintiffs' pursuit of their claims . Moreover, WCW's representations regarding its alleged inability to determine the races of its own wrestlers were untruthful . WCW's misconduct in this regard was egregious . Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 5 of 76 - 6 - Indeed, it is clear that WCW is perfectly capable of identifying the races of its wrestlers when it is in its best interests to do so, as was the case in the Ross litigation . The intent of WCW to deceive counsel and the Court is made even more apparent by the fact that WCW did not disclose any information to Plaintiffs regarding the Ross case in discovery . Indeed, WCW first disclosed the existence of the Ross matter only when it thought it could use the case as precedent in this case to defeat the Title VII claims of the Plaintiffs . Accordingly, the only issue raised by this motion is the level of sanctions that is appropriate . Plaintiffs respectfully submit that any of the following sanctions against WCW are warranted, individually or in the aggregate : A . An Order Striking WCW's Answer A court may strike the pleadings of a litigant where, as here, that litigant has engaged in willful discovery misconduct . See Buchanan 820 F .2d at 361 Truck Treads, Inc . v . Armstr Rubber Co . , 818 F.2d 927, 929 (5th Cir . 1987) ; Malautea, 148 F .R .D . 362 . Although this remedy is typically applied in instances where a party disobeys a discovery Order, the remedy is arguably even more appropriate under the present facts because WCW has both withheld discoverable information and misled Plaintiffs and the Court with respect to its alleged Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 6 of 76 delayed the disclosure of information or otherwise obstructed Plaintiffs' discovery efforts . If WCW cannot defend itself - 7 - inability to access this information . The Court most certainly would have required WCW to disclose racial identification information had it known WCW was capable of doing so and in fact had done so before .3 Regrettably, this is not the only instance where WCW has within the confines of the Federal Rules of Civil Procedure and without resort to dishonest discovery tactics ., then the Court can -- and should -- strip WCW of its ability to defend itself at all . B . An Order Striking WCW's Summary Judgment Motions In the event the Court determines that the striking of WCW's answers is not warranted, WCW should certainly not be permitted to profit from its deliberate concealment of information and misrepresentations regarding its ability to access that information . Thus, the Court may also in its If the Court harbors any doubt as to the effect WCW's deception has had, it should reflect upon this question : Would the Court have accepted WCW's argument that it was incapable of racial identification had it had the Statement of Facts and supporting affidavit from Ross before it at the time of WCW's representations? It is difficult to imagine that this Court would have accepted that WCW was incapable of racial identification after it told Magistrate Judge Harper that "a large majority o£ [its wrestlers] were white ." Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 7 of 76 - 8 - discretion enter an order striking WCW's summary judgment motions in the Onoo, Walker , and Morris matters . C . An Order Estopping WCW From Challenging Plaintiffs' Evidence Regarding the Races of WCW Wrestlers and Awarding Plaintiffs the Fees and Expenses They Have Incurred as the Result of WCW's Misconduct Because of WCW's failure to identify the races of its wrestlers during specified years, Plaintiffs have been forced to undertake time consuming and expensive efforts to ascertain this information on their own . Given the foregoing, at a minimum, the Court should enter an Order estopping WCW from challenging the evidence Plaintiffs present in opposition to WCW's summary judgment motions and at trial regarding the racial composition of WCW's wrestlers . Simply Put, WCW should have undertaken this exercise on its own and had every opportunity to do so . It should be held to the consequences associated with its tactical decision to shift this burden upon Plaintiffs . In addition, the Court should require WCW to reimburse Plaintiffs for the scores of hours and unnecessary expenses they have incurred in connection with the filing of this motion, litigating this issue over the past several months, and ascertaining the disputed information at issue in this motion on their own . It is now clear that Plaintiffs have been given the "runaround" with respect to identifying the races of WCW wrestlers . They should not be required to bear the burden of Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 8 of 76 Respectfully submitted this RfJ"'may of January, 2003 . - 9 - WCW's discovery failures in this regard . Plaintiffs will prove the amount of the fees and expenses they seek to recover at a hearing before the Court upon this motion or, alternatively, will submit an affidavit outlining these expenses upon instruction by the Court . III . CONCLUSION WCW has willfully withheld information that is central to Plaintiffs' disparate impact claims under the untruthful ruse that it was incapable of providing this information . This is egregious discovery misconduct . Moreover, Plaintiffs have been materially prejudiced by these developments . The Court should enter appropriate sanctions accordingly . Cary Ichter, Esq . Ga . Mate Bar No . 382515 Charles Gernazian Georgia Bar No . 291703 Michelle M . Rothenberg Georgia Bar No . 615680 Attorneys for Plaintiffs MEADOWS, ICHTER 6 BOWERS, P .C . Fourteen Piedmont Center, Suite 1100 3535 Piedmont Road Atlanta, GA 30305 (909) 261-6020 Attorneys for Plaintiffs Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 9 of 76 Cary1Ichter Georgia Bar No . 382515 CERTIFICATE OF SERVICE This is to certify that I have this date served opposing counsel to this action with the foregoing PLAINTIFFS' MOTION TO STRIKE ANSWER OR FOR OTHER APPROPRIATE SANCTIONS AND MEMORANDUM OF LAW IN SUPPORT THEREOF by depositing a copy of the same in the United States Mail with adequate postage, addressed as follows : Eric Richardson, Esq . Evan Pontz, Esq . Troutman Sanders LLP Suite 5200, Bank of America Plaza 600 Peachtree Street, N .E . Atlanta, Georgia 30308-22165 This 19t" day of January, 20 Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 10 of 76 (To be scanned in place of tab) EXHIBIT / ATTACHMENT A Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 11 of 76 Dear Judge King ; Pursuant to your request, the parties proposed agenda for the upcoming April 25, scheduling conference . Where appropriate, designate the issues to which they jointly Court's approval and/or guidance . To the parties have differing positions, we will respective positions . the parties will agree and seek the extent that the highlight the parties' M .aDOws, IcxTEx & Tid _c A T T O R N E Y S A "r L .A W ~ PROI(65i0xA L COPnOPA T iON EIGHT PIEDMONT CENTER . SUITE 300 7575 PIEDMONT ROAD. N.E . AT u;idih . GGVHIulA 70305 TcL[FNONE'./- Kip P . Roth, Esq . Georgia State Bar No . 615615 Attorneys for Defendant World Championship Wrestling, Inc . 5200 NationsBank Building 600 Peachtree Street, N.E . Atlanta, Georgia 30308-2216 (404) 885-3000 Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 75 of 76 r IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ROBERT ROSS, JR ., ) Plaintiff, ) v. ) WORLD CHAMPIONSHIP ) WRESTLING, INC., ) Defendant. ) NO . 1:97-CV-1206-JEC WCW 102105 CIVIL ACTION FILE CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the within and foregoing DEFENDANT WORLD CHAMPIONSHIP WRESTLING, INC.'S STATEMENT OF UNDISPUTED MATERIAL FACTS upon opposing counsel by depositing a copy in the United States Mail with sufficient postage thereon addressed to : Gary J. Pernice, Esq. Pernice & Associates, P .C . 110 Hammond Drive, N . E. Atlanta, Georgia 10328-4806 This Z7" day of March, 1994 WW * Akw Step en W . Riddell Georgia State Bar No . 604810 Attorney for Defendant World Championship Wrestling, Inc . TROUTMAN SANDERS 600 Peachtree Street, N . E. Suite 5200 Atlanta, Georgia 30708-2216 (404) 885-3000 Case 1:00-cv-01720-CC Document 105 Filed 01/14/03 Page 76 of 76