Jackson Jambalaya

Carlos the Clown has to pay up in the Belhaven case.  U.S. District Judge Carlton Reeves sanctioned attorney Carlos Moore $500 after the court ruled his client destroyed evidence and lied about the destruction.  His client must also pay a $100 fine.  The fine is the second time this year a federal judge has sanctioned Mr. Moore.

Erica Stewart sued Belhaven University and former employee Tarold Durham for sexual harassment last year.  U.S. District Judge Carlton Reeves dismissed the complaint against Mr. Durham in June while Belhaven asked the court to sanction Ms. Stewart's attorney, Carlos Moore.  Ms. Stewart claimed that Mr. Durham sent sexually explicit images of himself to her cellphone when she interviewed for a job at Belhaven.  However, Belhaven produced a report that showed the plaintiff sent sexually provocative pictures of herself in a partial state of undress to the defendant prior to his allegedly sending the offensive picture. Ms. Stewart also got rid of the phone containing the allegedly offensive correspondence before Belhaven could get it.  Judge Reeves succinctly and sardonically spelled out why he sanctioned the troublesome twosome:

In 2015, Erica Stewart sought a job in the Online Admissions Department of Belhaven University. She knew Tarold Durham, the director of that office, through social channels. Durham had led her to believe that there would be a vacancy within the Department.

Stewart and Durham then exchanged a series of sexually explicit text messages and photos. Durham wanted sexual favors in exchange for the job offer, while Stewart kept up flirtatious banter to try and get the job. When no offer materialized, Stewart filed a charge of discrimination with the EEOC and subsequently commenced this suit against Belhaven and Durham. She asserted a variety of claims under Title VII and Mississippi law.

Durham—who was fired from Belhaven for his conduct—maintained that the messages were flirtatious and consensual. The record bore that out to the extent that there was no evidence that he had caused Stewart emotional distress. As a result, Durham was dismissed from this case.....

This case concerns text messages and photos sent between smartphones. The parties disagree about what was sent, when it was sent, and why it was sent. That means the parties’ phones were critical evidence. The Federal Rules of Civil Procedure and this Court’s Case Management Order required the phones to be preserved.

Stewart knew that the texts and photos on her phone were important. The EEOC investigator intimated that Stewart had not shared all of the relevant communications with the EEOC. When this suit was commenced, Belhaven’s attorneys immediately sent Stewart’s lawyer a letter demanding that she “preserve and sequester” her phone. And in spring 2017, as discovery progressed, Stewart had to sign several documents, under oath, indicating that she still had her phone and had not deleted or excluded any of its content from the defendants.

Belhaven was therefore surprised to learn during Stewart’s deposition that the phone had broken and was no longer in her possession. After repeated inquiries to her counsel over the following weeks, Belhaven discovered that Stewart had taken her phone to a local AT&T store and purchased a new phone. She had not kept her old phone. No independent forensic examination had been conducted before the phone was lost.

Such an examination probably would have hurt Stewart’s case. We know that because testimony and screenshots now establish that Stewart had indeed failed to share all of the relevant messages with the EEOC. In her deposition, Stewart could not explain how some of the text messages were deleted from her phone before they were shared with the EEOC.

Stewart denies that her conduct is sanctionable. She blames opposing counsel for not getting stored copies of her text messages from her iCloud account or her new phone. She also says that opposing counsel failed to try and recover the phone directly from the AT&T store. Stewart even has the gall to ask the Court to award her attorney’s fees for having to respond to Belhaven’s motion.

These arguments are inexcusable. Stewart and her attorney had the duty to preserve her phone. When they failed to do so, they should have attempted to recover stored messages from iCloud, the new phone, and the AT&T store. This kind of deflection has no defense.

When Stewart did search her iCloud, moreover—after her attorney filed this response memorandum—she identified new, material, and important evidence. That is hardly a sign of diligence, though; it directly contradicts Stewart’s earlier sworn statements that she had produced everything to Belhaven.

The Court finds that Stewart’s behavior, from the EEOC investigation to the present, suggests a pattern of deception. The discovery violation and false statements merit sanctions. Her attorney’s failure to comply with his discovery obligations under the Rules and Court Orders also merits sanctions.

Judge Reeves made sure everyone knew what took place in an earlier order:

The day after Durham sent the picture of the tumescent penis, Stewart replied, “you can get [a] hug and kiss after the interview!” She then added, “Sooo I found myself thinking about you.” The two flirted back and forth: Durham called her “boo”; Stewart called him “Hun.” When Durham wrote “I miss you,” Stewart responded “I miss you too” and sent an emoji blowing him a kiss. She also revealed she had once participated in a threesome, texting “I like stuff like that . . . so if you become my boo. Stuff like that comes with me.” Later she wrote, “we can ‘celebrate’ once I get the job!” along with three winking emoji, and invited Durham to join her and a friend for a drink at a local restaurant.

Needless to say these responses do not indicate distress. Stewart’s deposition testimony confirms as much. Counsel opposite asked, “Now, by telling him you’ll hug and kiss him, you don’t sound particularly upset in your response about receiving the penis picture; is that correct?” Stewart answered, “No, I’m not -- I didn’t sound upset.” When asked again whether she was “upset in any way” over the photo, she replied “no.”...

(Footnote)1 After the briefing on this motion closed, Stewart located and produced a nearly-nude, salacious selfie she had sent Durham. The supplemental production was vague as to the selfie’s date, but Stewart’s deposition testimony indicates that she sent Durham the selfie before he sent her the penis photo. In other words, Durham’s pornographic photo of a penis was sent in response to Stewart’s scantily-clad selfie.

It should be noted that a federal judge in north Mississippi sanctioned Mr. Moore for $3,000 earlier this year.  See below for a links to the coverage about that story. 
 
Earlier posts
Belhaven: Stewart committed fraud upon court.  
Did Carlos' client try to smear Belhaven & employee?  

Posts about sanctions in City of Tupelo case
Court tells Carlos Moore to pay up.  
Tupelo goes after Carlos Moore.  
Carlos Moore must pay up or else.



Kingfish note: Such evidence obviously did not endear Ms. Stewart to the Court.  Of course, Mr. Moore and Ms. Stewart sure didn't mind posing for the cameras when they filed this bogus lawsuit:



Somehow, Mr. Moore and his client did not mention the bootylicious pictures that she sent to the defendant.    It is tempting to post those pictures after what she pulled with this lawsuit.