Reply Brief, Witness Tampering Motion Against Access Therapies Et Al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

RITURAJ SINGH PANWAR, and )
MICHAEL RICHARD )
BAUTISTA AGUSTIN, )
on behalf of themselves )
and all others similarly situated, ) Case No.: 1:12-cv-00619-TWP-TAB
)
) CLASS ACTION
Plaintiffs, )
)
v. )
)
ACCESS THERAPIES, INC.,RN STAFF, INC., )
d/b/a REHABILITY CARE, RAMON VILLEGAS, )
MANUEL GARCIA, and HARVINDER DHANI )
)
Defendants. )

PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF MOTION FOR
WITNESS TAMPERING AND DISCOVERY MISCONDUCT SANCTIONS

Plaintiffs Rituraj Panwar and Michael Agustin (Plaintiffs), and all others similarly
situated, through their undersigned attorneys, hereby submit their reply in support of their
Motion for Witness Tampering and Discovery Misconduct Sanctions. Plaintiffs motion
concerns an extreme form of discovery misconduct in which Defendants took affirmative steps
contacting H-1B employees to discourage or prevent compliance with the Courts February 13,
2013 Order (Dkt. No. 87). Only one disputed issue of fact exists between the parties: (a)
whether Defendants instructed employees to ignore the Court-required communication to
employees to produce documents, or (b) whether Defendants (as they claim) instructed
employees that compliance with the request for documents was not required. In either event, the
Defendants conduct constitutes witness tampering. The only plausible explanation as to why
Defendants would contact H-1B employees concerning the Court-ordered request for documents
Case 1:12-cv-00619-TWP-TAB Document 177 Filed 04/21/14 Page 1 of 21 PageID #: 1765
2

was to induce employees not to produce documents. 18 U.S.C. 1512(b)(2)(A). Defendants
actions were successful: 83 of 84 employees who received Mr. Centos e-mail provided no
documents. Defs. Oppn at 17 (Dkt. No. 176); Brown Decl. 6, 10 (Dkt. No. 109). As
Defendants themselves admit, the effort to collect document pursuant to the Courts February 13,
2013 Order failed. Defs. Oppn at 17.
Moreover, since Plaintiffs filed their opening brief, Defendants have engaged in
additional witness tampering, contacting witness Dante Abad and intimidating him in an effort to
influence him into reversing his signed declaration and discourage his participation in this
case. 18 U.S.C. 1512(b)(1). Defendants conduct has been outrageous, has caused Plaintiffs
considerable prejudice, and warrants severe sanctions. Abner v. Scott Mem. Hosp., 634 F.3d 962,
964 (7th Cir. 2011) (Misconduct may exhibit such flagrant contempt for the court and its
process that to allow the offending party to continue to invoke the judicial mechanism for its own
benefit would raise concerns about the integrity and credibility of the civil justice system that
transcend the interests of the parties immediately before the court) (citation omitted).
BACKGROUND
Plaintiffs served their first request for production of documents in this case on June 14,
2012, requesting, inter alia, [d]ocuments relating to communications with H-1B employees.
Report and Recommendation at 2 (Dkt. No. 155), as adopted by Adoption (Dkt. No. 162)
(R&R); Pls. First Req. for Prod. of Documents, Req. No. 8. On October 16, 2012 the Court
ordered Defendants to produce responsive documents by November 27, 2012. See Order (Oct.
16, 2012) (Dkt. No. 60); Order (Nov. 27, 2012) (Dkt. No. 76). Defendants failed to comply. On
February 13, 2013, the Court issued an additional Order placing Defendants counsel in charge
of Defendants discovery efforts. Order (Feb. 13, 2013) (Dkt. No. 87) (February 13, 2013
3

Order); R&R at 6 n.2. That Order required: (1) Defendants attorneys [to] actively coordinate,
supervise, and where possible, help conduct a search and collection of all [responsive]
documents; (2) that Defendants counsel (not Defendants) send an e-mail notice to all current
H-1B workers requesting their production of emails; and (3) that Defendants attorneys shall
follow up with each H-1B employee to supervise the collection of such emails from all current
H-1B employees, and shall promptly produce all non-privileged emails located to Plaintiffs
counsel. Order at 1-2 (Feb. 13, 2013).
Defendants counsel (Mr. Cento) waited until April 26, 2013 to send out the required e-
mail.
1
During the interim time period, Defendants held a meeting and, according to Defendants,
instructed their staff to tell employees that responding to Mr. Centos Court-ordered e-mail was
not required. Dhani Afft 8 (Dkt. No. 176-2); Mabesa Afft 5-6 (Dkt. No. 176-1); Garcia
Afft 8 (Dkt. No. 176-3). Defendants admit that they had at least five in-house employees
instruct H-1B employees that responding to Mr. Centos e-mail was not required. Kapoor Afft
5 (Dkt. No. 176-5); Marcos Afft 5 (Dkt. No. 176-10); Mehta Afft 5 (Dkt. No. 176-11);
Bhatnagar Afft 5 (Dkt. No. 176-14); Mabesa Afft 6 (I would have told them that
responding was up to them just as I was instructed to do during the meeting with my
supervisors); Catacata Tr. 15:14-17 (Q: Did you take [Ms. Mabesas] words as meaning that
you did not have to respond to the e-mail? A: Yeah) (Dkt. No. 176-15). Defendants instructed
at least two employees to ignore Mr. Centos e-mail. 2d Abad Decl. 4; Libertino Decl. 8
(Ex. 2). Some current H-1B employees were never sent Mr. Centos e-mail. See Mendoza Decl.
3 (Dkt. No. 112-1); Catacata Tr. 13:21-14:3 (Q: Were you ever asked to produce documents

1
During the interim period, Defendants sent releases to employees during March 2013, as part of
their Signature Campaign an attempt to coerce employees to give up wage rights and
discourage their participation in this litigation. See Pls. Supp. Sanctions Brief at 1-2 (Dkt. No.
114).
4

to Access Therapies in connection with this litigation [by an] Access Therapies attorney? A: No,
I have not spoken with an attorney from Access Therapies.). Mr. Cento did not follow-up with
employees to whom he sent his email, in violation of the February 13, 2013 Order. Id.; 2d Abad
Decl. 5 (Ex. 10).
Defendants efforts proved successful. Of the 84 individuals Mr. Cento e-mailed, 83 did
not produce emails. Defs. Oppn at 17; Brown Decl. 6, 10. Defendants produced a total of
16 e-mails from a single employee. Id 10. In Defendants words, the effort to obtain emails
through the request of Defendants counsel had failed. Defs. Brief at 17.
On February 21, 2014, the Court held a phone conference to discuss ongoing discovery
issues. During that conference, Plaintiffs raised their concern that Defendants would contact
witnesses in an effort to influence their testimony. The Court cautioned the parties that any such
contact would be tantamount to witness tampering. On March 17, 2014, in connection of their
Motion for Witness Tampering Sanctions, Plaintiffs submitted the declaration of Dante Abad, a
current Access Therapies employee, confirming that Access Therapies employee Tess Mabesa
had called him and told him to ignore Mr. Centos e-mail. Abad Decl. 7 (Ex. 4). On March
31, 2014, Ramon Villegas, an Access Therapies and RN Staff executive, spoke on the phone
with Mr. Abad regarding his declaration. Mr. Villegas secretly and illegally recorded that
conversation.
2
According to the Mr. Villegass attested transcript of the call, Mr. Villegas

2
As Defendants know, Mr. Abad is a resident of Maryland, and he was present in Maryland
during the secretly recorded conversation. The recording, use, and disclosure of the contents of
that recording are felonies under Maryland law subject to imprisonment for not more than 5
years or a fine of not more than $10,000, or both. MD Code, Courts and Judicial Proceedings,
10-402(a)-(b). Plaintiffs informed Defendants of this fact in a letter to the Court dated April 7,
2014. (Ex. 11). Nevertheless, Defendants proceeded to include a purported transcript (as
attached to the affidavit of Ramon Villegas) in their opposition brief, thus making it part of the
public record. Because Defendants have made the transcript part of the public record, and
5

initially told Mr. Abad that the Maryland job market was very weak and that he was lucky to
have a job. Recording Tr. at 8-9 (Dkt. No. 176-4). Mr. Villegas then repeatedly asked Mr. Abad
what Ms. Mabesa had told him, suggested that Mr. Abads declaration could not be true, and
repeatedly emphasized the instruction he believed Ms. Mabesa must have given:
What is the right of Tess to tell you not to respond? Even if I told you Dante not
to respond, and the very next minute, you responded then my telling you not to
respond does not mean anything. Am I right? What we are telling the lawyer is
that it is possible that Dante misinterpreted what we said. Im sure Tess would
have told you is Hey Dante, its up to you to respond or not to respond. Am I
right? We know you are always busy. Am I right? Isnt that what Tess told you
or is it. Id. at 11.

[W]hat they are emphasizing is that you, Dante, said that Tess told you not to
respond. That is all I want to know did she tell you specifically do not to
respond? Or did she tell you Dante, its up to you, its up to you to respond or
not to respond. So which is which? Id. at 11.

You have a signed affidavit that was forwarded to us. Our lawyer is mad at us
stating that Tess called Dante Abad and told him not to respond. That is absurd!
We will not say that to anyone Dante. We will tell you that it is up to you to
respond or not to respond. Id. at 12.

The issue that the lawyer is emphasizing to us is that Tess supposedly told you not
to respond to that email. That is it. That is what they are pinning on us and
basically the judge will not like it if we are saying those to our employees. Our
point is Tess did not say that. This is the reason why Manny scolded Tess. She is
being scolded on this and all we need from you Dante is to find out what she told
you. Did she tell you not to respond? Or did she tell you its up to you to respond
or not to respond. Id. at 13.

Mr. Abad then informed Mr. Villegas that he had to go because his relative was very sick and
close to death, id. at 14 (Mr. Abad: [My relative] in the hospital is about to die), but Mr.
Villegas continued to question Mr. Abad:
If you want to respond or not to respond. If you are happy with what you see and
how you are treated by the company, then its up to you its your choice not to
respond or to respond. If you are not happy with the company, its up to you to

Plaintiffs have not received contrary instructions from the Court, Plaintiffs address the content of
the transcript below.
6

respond or not to respond. That is what we said Dante. That is it. I just want to
clarify that just in case, just in case, you told the lawyer that Tess told you not to
respond. Ok? Dante, thats all. Thank you. Id. at 15.

Mr. Abad was afraid and intimidated by Mr. Villegas unexpected questioning. 2d Abad
Decl. 7. Because he was afraid the Defendants would retaliate against him, Mr. Abad denied
having signed his prior declaration. Id. 7; Recording Tr. at 13 (Mr. Villegas: Did she tell you
not to respond? Or did she tell you its up to you to respond or not respond. Mr. Abad: I did not
say that. Mr. Villegas: So you did not say that. There is no statement from you that Tess told
you not to respond. Dante, hah? I dont understand.). When Mr. Abad determined the true
purpose of Mr. Villegas call, he quickly terminated the conversation. Id. at 13-14 (Mr. Abad:
Why did you call me? Wait a minute.).
3

ARGUMENT
Trying improperly to influence a witness is fraud on the court and the opposing party.
Ty Inc. v. Softbellys Inc., 517 F.3d 494, 498 (7th Cir. 2008). Whoever knowingly uses
intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in
misleading conduct toward another person, with intent to (1) influence, delay, or prevent the
testimony of any person in an official proceeding,
4
[or] (2) cause or induce any person to
withhold testimony, or withhold a record, document, or other object, from an official
proceeding, commits witness tampering. 18 U.S.C. 1512(b)(1)-(2). Witness tampering
deserves the harshest sanction that the Court can deliver given the seriousness of the matter and

3
Disturbingly, Mr. Villegas responded to Mr. Abad that Manny [Garcia] is asking me to double
check on therapists that were supposedly called by Tess [Mabesa] on that. Id. at 14.
Defendants have not revealed which other employees received calls from Mr. Villegas.
4
The term official proceedings means a proceeding before a judge or court of the United
States. 18 U.S.C 1515(a)(1).
7

in order to protect the judicial process. Ramsey v. Broy, No. 08-CV-0290-MJR-DGW, 2010
WL 1251199, *4 (S.D. Ill. Mar. 24 2010).
Defendants argue that Plaintiffs must prove witness tampering with clear and convincing
evidence. But the Supreme Court and Seventh Circuit have indicated this is not so. See Grogan
v. Garner, 498 U.S. 279, 286 (1991) (we presume that [the preponderance-of-the-evidence]
standard is applicable in civil actions between private litigants); Ty Inc., 517 F.3d at 499 (we
are led to doubt that there is any utility in insisting on proof by clear and convincing evidence in
a [witness tampering] case such as this). Even the case Defendants cite calls into to question
Defendants position. Wade v. Soo Line Ry. Corp., 500 F.3d 559, 564 (7th Cir. 2007) (We
doubt that clear and convincing evidence is required to sanction a party with dismissal under
Rule 37) (citing Grogan, 498 U.S. 279) (relied on by Defendants at Defs. Oppn 6 n.1). In any
event, as discussed below, the evidence of Defendants witness tampering is overwhelming,
much of it freely admitted by Defendants, and deserving of severe sanctions.
I. Defendants Communications With H-1B Employees Amounts To Witness
Tampering and Discovery Misconduct.

Defendants communications with H-1B employees regarding the Courts February 13,
2013 Order constitutes witness tampering. First, Defendants engaged in a coordinated effort to
subvert the Order by instructing their employees that responding to Mr. Centos e-mail was not
required. Defendants admit that at least five members of their staff instructed H-1B employees
that they were not required to respond to Mr. Centos e-mail.
5
Defendants admit that these
instructions were given at the instruction of senior management.
6
Defendants admit that the
effort to collect e-mails from H-1B employees failed. Defs Oppn at 17. The only factual

5
Kapoor Afft 5; Marcos Afft 5; Mehta Afft 5; Bhatnagar Afft 5; Mabesa Afft 6.
6
Dhani Afft 8; Mabesa Afft 5-6; Garcia Afft 8.
8

dispute at issue is whether Defendants also instructed some employees to ignore Mr. Centos
e-mail.
7
But there is no practical difference between an instruction to ignore Mr. Centos e-
mail, and an instruction that responding was not required. This is especially true in the culture of
fear of retaliation Defendants nurture among their employees.
8
As Mr. Villegas stated in his
secretly recorded conversation with Mr. Abad, If you are happy with what you see and how you
are treated by the company, then its up to you its your choice not to respond or to respond. If
you are not happy with the company, its up to you to respond or not respond. Recording Tr. at

7
Defendants attacks on the credibility of Mr. Abad and Ms. Libertino are baseless and warrant
only brief comment. Contrary to Defendants assertions, Defs. Oppn at 6, both Mr. Abad and
Ms. Libertino are current employees with no motive to fabricate testimony. Abad Decl. 9 (Ex.
4); Libertino 2013-14 Payroll (Ex. 12). Both were interviewed separately and had no
understanding of the discovery disputes at issue in this case. Both stated, independently, that
Ms. Mabesa told them to ignore Mr. Centos e-mail. 2d Abad Decl. 4 (Those were her
exact words); Libertino Decl. 8. And both faced risks that Defendants would retaliate against
them for providing declarations. See, e.g., Defs. Marion County Compl. against E. Mendoza
(filed 11 days after Plaintiffs filed Mr. Mendozas declaration in this case) (Dkt. No. 120-2).
Moreover, contrary to Defendants assertions, Defs Oppn at 6, Ms. Mabesas statements, as
recounted in the declarations, are not hearsay. See Fed. R. Evid. 801(d)(2) (excluding statements
of a party or its agent from the definition of hearsay); Fed. R. Evid. 801(c)(2) (defining hearsay
as a statement used to prove the truth of the matter asserted).
On the other hand, Ms. Mabesas testimony is fraught with inconsistencies. In her
affidavit, Ms. Mabesa stated I know for certain that I never told Ms. Libertino or Mr. Abad to
just ignore it). Mabesa Afft 9. However, Ms. Mabesas deposition testimony directly
contracts this statement. Mabesa Tr. 51:10-21 (Ex. 13) (Q: Did you call H1B employees? A: I
dont remember calling them about this. Q: You dont remember calling them? A: No. Q: Did
you you dont remember calling anyone? A: I cant we might have talked about it; but I
cant remember who called, if I called or they called. Q: Do you remember any conversation
you had with any of the H1B employees ? A: Conversation, no[] I cant remember exact
conversation I had.). Accordingly, the Court should disregard Ms. Mabesas contrary affidavit.
See Adusumilli v. City of Chicago, 168 F.3d 353, 360 (7th Cir. 1998) (explaining the well-
established rule that [w]here deposition and affidavit conflict, the affidavit is to be disregarded
unless it is demonstrable that the statement in the deposition was mistaken) (citation omitted).
Additionally, Ms. Mabesa has considerable motive for fabrication. Ms. Mabesas employer is
facing default judgment if she tells the truth about her calls and instructions to H-1B employees,
and she is facing considerable pressure from the companies management and lawyer.
Recording Tr. at 12-13 (Our lawyer is mad at us stating that Tess called Dante Abad and told
him not to respond. The judge will not like it if we are saying those to our employees. This
is the reason why [executive] Manny [Garcia] scolded Tess.).
8
See Pls. Brief at 2-3 (Dkt. No. 171).
9

15. Defendants equated a response with an employee that was not happy with the company.
Id. This message was clearly conveyed to Defendants employees, as only a single employee
responded and provided documents of the 84 contacted. Defs. Oppn at 17; Brown Decl. 10.
Second, Defendants were under an affirmative obligation to produce their employees
documents. Federal Rule of Civil Procedure 34(a) requires a party to produce requested
documents in its possession, custody, or control. Fed. R. Civ. P. 34(a)(1). A party responding
to a document request is under an affirmative duty to seek that information reasonably available
to it from its employees, agents, or others subject to its control. Novelty, Inc. v. Mountain View
Marketing, Inc., 265 F.R.D. 370, 376 (S.D. Ind. 2009) (citation omitted); accord Gray v.
Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992). It is axiomatic that corporations control the
documents of their employees. Chevron Corp. v. Salazar, 275 F.R.D. 437, 448 (S.D.N.Y. 2011)
(Courts have repeatedly found that employers have control over their employees and can be
required to produce documents in their employees possession) (compiling cases); Flagg v. City
of Detroit, 252 F.R.D. 346, 353-54 (E.D. Mich. 2008) ([C]ourts have found that a corporate
party may be deemed to have control over documents in the possession of one of its officers or
employees) (citing Riddell Sports Inc. v. Brooks, 158 F.R.D. 555, 558 (S.D.N.Y. 1994); Herbst
v. Able, 63 F.R.D. 135, 136 (S.D.N.Y. 1972)); In re Folding Carton Antitrust Litig., 76 F.R.D.
420, 423 (N.D. Ill. 1977).
Defendants cannot reasonably deny that their employees e-mails were in Defendants
custody and control. Herbst, 63 F.R.D. at 137 (Plainly, Douglas employees are persons within
its control). Accordingly, Defendants purported effort to remain neutral and instruct their
employees that they were not required to respond to Mr. Centos e-mail, Defs. Oppn at 8, was a
violation of Rule 34; this Courts October 16, 2012 and February 13, 2013 Orders, and
10

constituted witness tampering. Defendants were under an affirmative obligation to produce their
employees e-mails. Moreover, the February 13 Order expressly placed responsibility for
document collection from H-1B employees in Mr. Centos hands. Defendants premeditated
efforts to obstruct the collection process through witness tampering
9
effectively sabotaged that
process
10
and were taken with the highest degree of bad faith.
Defendants admit to engaging in a coordinated effort to instruct employees that
responding to Mr. Centos e-mail was not required. At least two employees were told to
ignore Mr. Centos e-mail altogether. The only plausible explanation for these efforts was to
induce employees not to produce documents, i.e. witness tampering. 18 U.S.C.
1512(b)(2)(A). These efforts were almost entirely successful at undermining the Courts
February 13, 2013 Order and obstructing discovery, as only one employee produced a small
number of e-mails, of the 84 Mr. Cento e-mailed. Defendants conduct warrants the harshest
sanctions.
II. Ramon Villegas Secretly Recorded Conversation With Dante Abad Constitutes
Additional Witness Tampering.

In a further effort to influence witnesses in this case, Defendants contacted Dante Abad
on March 31, 2014 and attempted to pressure him into reversing his signed declaration and
discourage his participation in this case. Villegas Afft 7, Recording Tr.; 2nd Abad Decl. 7.
A person commits witness tampering if he knowingly uses intimidation, threatens, or corruptly
persuades another person, or attempts to do so, or engages in misleading conduct towards
another person, with intent to influence, delay, or prevent the testimony of any person in an

9
Dhani Afft 8 (We held a meeting with our staff [and] directed the staff to tell any employee
that asked about [Mr. Centos] email that responding was up to them).
10
Defs. Oppn at 17 (only one of the employees emailed actually provided emails the effort
to obtain emails had failed).
11

official proceeding. 18 U.S.C 1512(b)(1). Defendants conduct falls squarely within this
definition. See Young v. Office of U.S. Senate Sergeant at Arms, 217 F.R.D. 61, 67-69 (D.D.C.
2003) (ordering dismissal for witness tampering where litigant called witness and attempted to
coach [him] into providing false testimony).
As the transcript of the secret and illegally recorded conversation reveals, Mr. Villegas
first placed Mr. Abad on notice that his job was at risk and that it would be difficult for him to
find another. Recording Tr. at 8-9 (Maryland is a tough market, right. And ah were so lucky
that we were able to place you, right? [T]he market is tough Its very tough anywhere. I
saw others, theyre having hard time too.). Mr. Villegas had never discussed this topic with Mr.
Abad before. 2d Abad Decl. 7. Mr. Villegas then began questioning Mr. Abad about his
involvement in this lawsuit and his declaration. Recording Tr. at 9. Mr. Abad was shocked and
afraid. 2d Abad Decl. 7. He was concerned that Defendants would retaliate against him for
providing evidence against them.
11
Id. Because of this, he denied having signed his earlier
declaration. Recording Tr. at 13; 2d Abad Decl. 7. Mr. Abad has since re-affirmed his
signature of, and the truth within, his prior declaration. 2d Abad Decl. 3-4, 6.
Mr. Villegas conduct was outrageous and demonstrated an intent to influence Mr. Abad
into reversing his prior testimony and discourage his participation in the case. The only plausible
purpose for Mr. Villegas mentioning the tough market and repeatedly asking Mr. Abad about
his declaration and his involvement in the case was to intimidate and coerce him. In this context,
Mr. Villegas repeatedly suggested the proper answer Mr. Abad should provide. See, e.g.,
Recording Tr. 11, 13 (What we are telling the lawyer is that it is possible that Dante
misinterpreted what we said. Im sure Tess would have told you is Hey Dante, its up to you to

11
Defendants propensity for retaliation is well known among Defendants employees. See Pls.
Brief at 2-3.
12

respond or not to respond. Am I right? We know you are always busy. Am I right? Isnt that
what Tess told you[?] That is what they are pinning on us and basically the judge will not like
it if we are saying those to our employees. Our point is Tess did not say that.). This constitutes
witness tampering and further supports Plaintiffs motion for sanctions. Moreover, Defendants
illegal recording, and submission of a purported transcript from that recording, demonstrates the
lengths they will go to obstruct witnesses and try to conceal their prior discovery misconduct.
III. Defendants Extremely Belated Production of E-mails Does Not Excuse Their
Misconduct Or Cure Prejudice To Plaintiffs.

a. Defendants Cannot Avoid Sanctions Through Belated Production.
As they have done in the past when faced with sanctions, Defendants have attempted to
avoid punishment by belatedly producing some responsive documents.
12
R&R at 9 (the fact
that Defendants were able to produce many of the responsive documents shortly after being
notified that Plaintiff was seeking sanctions underscores the fact that Defendants were acting in
bad faith). Defendants, without explanation, failed to search archived email folders on their
computer server and on individual computers. Defs Oppn at 4-5. Since the instant motion,
Defendants have produced approximately 2,500 emails (dated between 2010 and 2014). The fact

12
Defendants assert, without proof, that Defendants began this effort immediately after the
Courts order on the first motion for sanctions; not after and not because Plaintiffs filed the
current motion. Defs. Oppn at 5; id. at 16 (Plaintiffs have not even bothered to wait to see
how Defendants respond to the Courts order that any additional documents be produced).
Defendants assertion is incredible. First, Defendants have been under a Court-ordered
obligation to produce these documents since October 16, 2012. Order (Oct. 16, 2012); R&R at 6
n.2. Moreover, since the Courts sanctions order, Defendants have produced two other sets of
documents to Plaintiffs. Throughout this process, Plaintiffs counsel and Defendants counsel
have been in contact regarding Defendants discovery efforts. At no point did Defendants
counsel ever indicate they planned to make a production of e-mails as they did after the witness
tampering motion.
13

Defendants had these e-mails and likely thousands more e-mails not yet produced
13
in their
possession throughout the pendency of this case underscores Defendants bad faith discovery
misconduct.
Moreover, this production proves what numerous declarants had affirmed and what
Plaintiffs had suspected all along that Defendants extensively rely on e-mail communication
with their field employees. This is so despite numerous assurances by Defendants that they had
produced all responsive e-mails and that they rarely used e-mail. See, e.g., R&R at 8 ([Michael
Agustin and Erickson Mendoza] allege over 700 e-mail exchanges with Defendants since 2009.
Defendants respond by asserting that Agustin is an exception to their general policy to
communicate by phone and Mendoza is an inadvertent oversight); Defs. Oppn to Pls. Mot.
for Sanctions, at 9 (Dkt. No. 103) (Defendants maintain they have produced all the e-mail in
their possession and control. It is axiomatic that Defendants cannot produce e-mails which they
do not possess.); H. Dhani 30(b)(6) Depo. Tr. 27:14-33:5 (Ex. 14) (testifying under oath that
Defendants rarely used e-mail and that they had produced all responsive e-mails). Defendants
latest production proves that these assurances had absolutely no basis in fact and amounted to
another blatant attempt to skirt their discovery obligations.
Defendants cannot avoid sanctions for willful misconduct through belated production of
documents. Johnson v. FedEx Corp., No. IP 99-1377-C-Y/K, 2002 WL 362753, at *3 (S.D. Ind.
Mar. 6, 2002) (quoting Ill. Tool Works v. Metro Mark Prod., Ltd., 43 F. Supp. 2d 951, 960 (N.D.
Ill. 1999) (Unfortunately for FedEx, it may not avoid sanctions by producing documents after

13
Defendants have substantially more than 2,500 e-mails and have yet to produce many, as
shown by declarants having each attested to having hundreds of emails exchanged with
Defendants. Agustin Decl. (over 500 e-mails) (Dkt. No. 100); Mendoza Decl. 2 (over 200 e-
mails) (Dkt. No. 112-1); Licupa Decl. 9 (Ex. 1); Libertino Decl. 3; Kumar Decl. 4 (Ex. 3);
Abad Decl. 5.
14

the motion for sanctions is filed . To allow a party to avoid sanctions by such a contrivance
would defeat the purpose of the rules, which is to promote voluntary discovery without the need
for motion practice.); Fautek v. Montgomery Ward & Co., 96 F.R.D. 141, 145 (N.D. Ill. 1982)
(Ultimate production of the material in question does not absolve a party where it has failed to
produce the material in a timely fashion.). As this Court has already found, production in
response to the threat of sanctions only underscores Defendants bad faith. R&R at 9.
Here, Defendants have been under a Court-ordered obligation to produce their
communications with putative class members since October 16, 2012. Order (Oct. 16, 2012);
R&R at 6 n. 2. Defendants alleged realization, a year and a half later, that they failed to search
archived email folders, Defs. Oppn at 4, does not excuse their prior misconduct and their
affirmative efforts to obstruct the discovery process and tamper with witnesses. Moreover,
Defendants explanation that these e-mails were overlooked because they were archive[d] and
on personal computers is not credible and is directly contradicted by Mr. Dhanis deposition
testimony.
14
Defendants current explanation is either a fabrication, or Mr. Dhani perjured
himself regarding Defendants prior search efforts. See Moore v. RTL Const., Inc., No. 09-3178
PAM/SER, 2011 WL 4738154, *6 (D. Minn. Aug. 23, 2011) (This Court has no reason given
the truncated document production to believe any ex post facto explanation or excuse that RTL
offers. Sanctions are appropriate for the concealment of evidence). In either case,
Defendants misconduct was willful and taken in bad faith.

14
Dhani 30(b)(6) Depo. Tr. 64:13-15 (Q: Were the archived e-mails searched? A: Everything
is on the server. It will be on there. Emil showed us how to do it. We did it.); id. 19:2-3 (Q:
And are files ever archived off the system? A: No.); id. 73:6-12 ([Ramon Villegas] went to
each computer he went to each computer, he also went to the server, each folder and checked
for the e-mails).
15

b. Defendants Recent Production Does Not Cure Prejudice to Plaintiffs.
In cases of witness tampering, the Court need not measure the impact on the litigation of
a wrongdoers willful misconduct before it issues a dismissal sanction. Ramsey, 2010 WL
125119, at *6 (ordering default judgment as sanction for attempted witness tampering).
Nevertheless, Defendants witness tampering has caused Plaintiffs substantial prejudice, which
Defendants production does not cure. Defendants conduct has prejudiced Plaintiffs in at least
three ways. First, Defendants have still not produced the e-mails of H-1B employees (i.e. the
evidence from tampered-with putative class members). Defendants efforts have ensured that
these individuals did not come forward with responsive documents. See Libertino Decl. 8
(Because of [Ms. Mabesas] instructions, I did not respond to Mr. Centos e-mail); Abad Decl.
7 (same).
Second, given Defendants affirmative bad faith efforts to tamper with witnesses, there is
no reason to believe Defendants latest production of e-mails is full and complete (nor do
Defendants even contend that it is). According to Defendants, the only e-mails found were
archive[d] or on personal computers. Defs. Oppn at 4. But Mr. Dhani testified that few e-
mails are ever archived and that all e-mails are stored on the server.
15
By Mr. Dhanis own
admission, most of Defendants e-mail is not archived or stored on personal computers thus
there is every indication that Defendants production remains deficient. See Moore, 2011 WL
4738154, at *8 (finding defendants prior discovery misconduct make it problematic for

15
Dhani 30(b)(6) Depo. Tr. 64:4-11 (Q: Are e-mails ever archived and then placed somewhere
else? A: You know, our system will ask for once in a while do you want to archive, and I dont
know if people say yes or no. I dont think 90 percent of the people know what that means to be
honest with you. If Im asked, sometimes I say yes, sometimes I say no.); id. 64:13-15 (Q:
Were the archived e-mails searched? A: Everything is on the server. It will be on there); id.
32:16-22 (Like I said, in 2010 our system crashed, and we lost almost everything e-mail wise
only the person who were able to recover their e-mail was if they saved it on their own computer,
and 99 percent of the people nobody did. So they were all gone at that point unfortunately.).
16

Plaintiff and the Court to trust and rely on the accuracy and completeness of the documents
produced in this case). Additionally, Mr. Dhani testified that Defendants internal e-mail server
crashed in 2010, causing the loss of all e-mail before that year. Dhani 30(b)(6) Depo. Tr. 32:16-
22. Defendants latest production does not appear to include any e-mail from before 2010.
16

One of the benefits of seeking discovery from H-1B employees directly was that their e-mail was
not lost in 2010.
17

Third, Defendants document production comes mere weeks before the deadline to file
class certification and summary judgment motions. Case Management Plan at 2-3 (Dkt. No.
165). This last minute production has ensured that Plaintiffs lacked relevant evidence through
the vast majority of this case. Moreover, Defendants repeated failures to produce (and
affirmative efforts to prevent) discovery, have significantly delayed the resolution of Plaintiffs
case on the merits. Order (Mar. 3, 2014) (continuing trial from May 5, 2014 to June 8, 2015)
(Dkt. No 164).
IV. A Default Judgment, Or, In The Alternative, A Finding Of Fact, Are Appropriate
Sanctions Given Defendants Level Of Misconduct.

Defendants argue that they have already been sanctioned for their discovery misconduct
and that further sanctions are inappropriate. This is incorrect. Witness tampering was not the
basis for the Courts January 29, 2014 Order granting sanctions for discovery misconduct. The
Court was not aware, when ruling on Plaintiffs initial motion for sanctions, of the depths of
Defendants malfeasance. Moreover, the Court premised its denial of more severe sanctions on
the assumption that Defendants would promptly complete their document production. R&R at

16
The relevant class period in this case is May 2006 through the present. See Order (Oct. 16,
2012).
17
Defendants field employees use personal e-mail accounts (such as Gmail or Yahoo), and were
not reliant on Defendants internal e-mail server.
17

13 (Rather than enter a judgment or permit an adverse inference, Defendants simply need to
produce any documents relevant to the remaining claims without further delay). Given the new
evidence that Defendants willfully and intentionally acted to subvert the discovery process in this
case, there is absolutely no reason to believe that Defendants will comply with their discovery
obligations. Nor is there reason to believe, given Defendants efforts to intimidate witnesses and
generate fear among their employees, that Plaintiffs will have a reasonable opportunity to obtain
relevant discovery from witnesses themselves.
18

Next, Defendants argue that a default judgment or a finding of fact is disproportionate to
the alleged offense. Defs. Oppn at 18. This is false. The Court may presume proportionality
when there are wilful or bad faith violations of discovery orders. Crown Life Ins. Co. v. Craig,
995 F.2d 1376, 1383 (7th Cir. 1993). Furthermore, [t]he Seventh Circuit has consistently
condemned witness tampering, suggesting that the practice deserves the harshest sanctions.
Ramsey, 2010 WL 1251199, at *5 (citing Ty Inc. v. Softbellys Inc., 353 F.3d 528, 537 (7th Cir.
2003); Weibrecht v. S. Ill. Transfer, Inc., 241 F.3d 875, 884 (7th Cir. 2001); Lightning Lube, Inc.
v. Witco Corp., 4 F.3d 1153, 1178-79 & n.15 (3d Cir. 1993)). Coercing or seeking to obtain or
manufacture false testimony strikes at the heart of the judicial system . Our legal system is
dependent on the willingness of litigants to allow an honest and true airing of the real facts.
Young, 217 F.R.D. at 71 (quoting Quela v. Payco-Gen. Am. Credits, Inc., No. 99 C 1904, 2000
WL 656681, *7 (N.D. Ill. May 18, 2000)); see also ABF Freight Sys., Inc. v. NLRB, 510 U.S.

18
Defendants assert, incredibly, that if Plaintiffs actually care[d] about these emails they
should simply subpoena Defendants own employees to produce them. Defs. Brief at 16-18.
The absurdity of this position is self-evident and Defendants cite no authority requiring a litigant
to separately subpoena documents from each and every employee of a corporate defendant. As
discussed above, employee documents are in the custody and control of the Defendants and the
Defendants were under an affirmative obligation to produce them. Had Defendants simply
complied with their discovery obligations and the February 13, 2013 Order Defendants
subpoena suggestion would be moot.
18

317, 323 (1994) (False testimony in a formal proceeding is intolerable). In other words, the
importance of accurate and truthful discovery to the civil justice system cannot be overstated.
Quela, 2000 WL 656681, at *7 (explaining further, our court system must have zero tolerance
for parties who seek to intentionally distort the discovery and trial process and granting default
judgment).
In light of the overwhelming importance of truthful discovery and testimony, Defendants
misconduct, discussed supra, warrants a default judgment on the issue of liability. See Crown
Life Ins. Co., 995 F.2d at, 1383-84 (affirming dismissal for wilful discovery violation);
Ramsey, 2010 WL 1251199, at *5-6 (dismissing case for witness tampering).
In the alternative, if the Court does not grant a default judgment, Plaintiffs respectfully
request that the Court order that H-1B employees are deemed to have started their employment
upon their initial I-797 validity date. See Pls. Brief at 10-12. Defendants falsely, and without
citation, assert that federal immigration law does not permit an H1-B [sic] employee to work
until October 1st of the year in which their H1-B [sic] visa is approved. Defs. Oppn at 18.
Defendants lack of citation is telling. Defendants position misstates immigration law. The I-
797 validity date represents the date on which an H-1B employee is permitted to start work, the
date that the employer represented to USCIS the employee was expected to start work, and the
date on which the employee was presumed to begin work. See 8 CFR 214.2(h)(9)(ii);
19
8 CFR
214(h)(13)(i)(A) (A beneficiary shall be admitted to the United States for the validity period of
the petition, plus a period of up to 10 days before the validity period begins and 10 days after the
validity period ends. The beneficiary may not work except during the validity period of the
petition).

19
Please note that Plaintiffs mistakenly cited this provision as 8 CFR 214.2(9)(ii) in their
opening brief, omitting the (h). The proper citation is 8 CFR 214.2(h)(9)(ii).
19

By way of example, Mr. Panwars H-1B petition was approved on April 5, 2011. Panwar
I-797 (Ex. 8), p. 2; 3rd Am. Compl. 38. On this date, Mr. Panwar was eligible to begin work,
and he requested, via e-mail and telephone, an immediate work assignment. Id. Mr. Panwar was
not assigned work or paid until December 16, 2011. Id. 41. Mr. Panwars example
demonstrates the crucial importance of e-mail in identifying putative class members start dates.
By obstructing Plaintiffs access to this crucial evidence, Defendants have made it much more
difficult for Plaintiffs to show the date on which putative class members were in the United
States and available to work. The I-797 validity date is a fair surrogate for this missing evidence.
See United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 271 F.R.D. 487, 502 (N.D.
Ind. 2010) (In cases where deeming certain facts to be established does not equate to a default
judgment, this sanction is one of the least harsh sanctions available to court) (citation omitted).
Such a sanction is particularly lenient in light of the other relevant evidence Defendants
misconduct has succeeded in concealing. For instance, employee e-mails are also relevant for
identifying class members, revealing wage abuses, calculating damages, and revealing the scope
and breadth of Defendants force labor scheme. Because Plaintiffs requested finding of fact
does not ameliorate this additional prejudice, a default judgment is the more appropriate
sanction. However, in the alternative, a finding of fact will help lessen some of the prejudice
Defendants intentional bad faith conduct has caused.
CONCLUSION
For the reasons stated above, and in Plaintiffs opening brief, default judgment should be
entered against the Defendants, or if default is not granted, in the alternative, the Court should
order certain facts established, as referenced above and in Plaintiffs opening brief.

20

Date: April 21, 2014 Respectfully submitted,

/s/Michael F. Brown
Michael F. Brown
DVG LAW PARTNER LLC
P.O. Box 645
Neenah, WI 54957
920-238-6781
920-273-6177 (fax)
mbrown@dvglawpartner.com
Daniel A. Kotchen
KOTCHEN & LOW LLP
1745 Kalorama Road NW
Suite 101
Washington, DC 20009
(202) 416-1848
(202) 280-1128 (fax)
dkotchen@kotchen.com
dlow@kotchen.com

Vonda K. Vandaveer
V.K. Vandaveer, P.L.L.C.
P.O. Box 27317
Washington, DC 20038-7317
202-340-1215
202-521-0599 (fax)
atty@vkvlaw.com

Andrew P. Wirick
HUME SMITH GEDDES GREEN & SIMMONS,
LLP
Attorney No. 11362-49
54 Monument Circle, 4th Floor
Indianapolis, Indiana 46204
Telephone: (317) 632-4402
Facsimile: (317) 632-5595
awirick@humesmith.com


CERTIFICATE OF SERVICE

I hereby certify that on April 21, 2014, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system which will send notification of such filings to
Defendants counsel of record in the Courts CM/ECF system.

/s/Michael F. Brown
Counsel for Plaintiffs


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