WhatsApp your Witness: Fifth Circuit finds Witness Coaching via Text during Deposition was “Discoverable” in Arbitration Proceeding
In 2022, it isn’t uncommon to text a friend asking for advice or help. What is uncommon, is texting your witness during a deposition in order to coach them through it.
The Fifth Circuit Court of Appeals affirmed the confirmation of an arbitration award despite protests from a pro se litigant that the award was procured by undue means as a result of the opposing counsel “coaching” a witness via text during a remote deposition.
The matter is Rodgers v. United Services Automotive Association, No. 21-50606 (5th Cir. July 8, 2022).
Facts
Derek Rodgers filed a complaint against his former employer, the United Services Automotive Association (“USAA”), alleging that he was wrongfully terminated in violation of the Family Medical Leave Act (“FMLA”) for taking several months of FMLA leave.
Rodgers filed a motion to refer the matter to arbitration, which was granted by the district court.
During the arbitration proceedings, counsel for Rodgers remotely deposed USAA employee relations advisor Erin Redmond.
Whilst Redmond was being deposed, Rodgers’ counsel discovered that Redmond had been texting with the USAA attorney.
After the discovery was made, counsel for both parties contacted the arbitrator (off the record) and reached an agreement that Redmond would be required to keep her phone out of reach for the remainder of the deposition. The texts were then immediately deleted by Redmond and the USAA attorney.
Findings
The arbitrator rendered an award in favor of USAA.
USAA filed a motion in district court to confirm the award whilst Rodgers’ counsel sought and was granted permission to withdraw, while Rodgers proceeded pro se to seek vacatur of the award.
Rodgers claimed, inter alia, that the award was procured by undue means under 9 U.S.C. § 10(a)(1) because the arbitrator considered Redmond’s deposition testimony despite the texting. The law in question states:
“(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration –
- Where the award was procured by corruption, fraud, or undue means; …”
The district court confirmed the award, explaining that Rodgers was not entitled to vacatur under section 10(a)(1) because he could not show that the improper behavior of USAA was “not discoverable by due diligence before or during the arbitration hearing,” as required by the statute.
In fact, the improper behavior not only was discoverable but actually was discovered before the arbitration hearing. Therefore, Rodgers could not show any undiscoverable improper behavior to support his section 10(a)(1) claims.
On appeal, the Fifth Circuit affirmed the district court’s denial of the motion for vacatur and the court’s confirmation of the award.
Conclusion
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