RS

Discovery Phase Preparation

• The formal discovery phase is beginning.

  • Previous work has been done ahead of time due to helpful documents provided.

  • Parties will exchange formal requests for documents.

  • Expectation that one party will request a comprehensive list of documents.

  • Some documents held back until formal requests are made.

• Each party will request documents from the other side.

  • Expectation that requested documents from the opposing party may not be particularly helpful.

  • Aim to collect all relevant documents that could support or detract from the opponent's case.

Written Discovery and Depositions

• After written discovery, depositions will occur.

  • Key individuals to be deposed include:

  • Doctor Sperry

  • The client

  • Dina Brown

  • Possible third-party witnesses like Doctor Serio.

  • Depositions provide testimony which can support claims in court.

Summary Judgment Considerations

• Discussion of a motion for summary judgment.

  • A motion for summary judgment can be tempting to file.

  • Definition: A legal motion asserting that there are no genuine disputes of material fact, thus allowing for a case to be decided based solely on the written record without a trial.

  • Difficulties for employers:

  • Courts often favor giving the accused party their day in court.

  • The court doesn’t resolve credibility disputes for summary judgment.

  • Example of credibility dispute: if a conversation between two parties differs, the court tends to accept the version favoring the party not moving for summary judgment.

• Concerns mentioned about a realistic chance of achieving summary judgment in this specific case:

  • Massachusetts courts often lean towards jury trials in whistleblower complaints.

  • Differences in case law between Massachusetts and New Hampshire discussed.

Evaluating Evidence and Case Strategy

• The employers need to gather enough evidence for a motion for summary judgment prior to trial.

  • Concerns were raised regarding the real possibility of this case going to trial based on the evidence presented.

• Witness considerations include assessing who can contribute valuable testimony regarding the incompetence alleged against Doctor Sperry.

• Mentioned names of possible witnesses that could provide insight:

  • Diane Monaco: Directly interacted with Doctor Sperry.

  • Melinda Togman: Involved and potentially cooperative witness, but may be intimidated.

  • Emphasized the importance of having credible witnesses.

Risk Factors and Presentation to Jury

• Caution expressed regarding potential pitfalls when presenting the case to a jury, specifically around:

  • Timing of termination and events leading to this decision.

  • Defendant raised issues about potential retaliation after contacting APA.

  • Protecting the institution against implications of wrongful termination related to employee whistleblowing.

  • Documented inaccuracies and incompetence ought to be highlighted without putting the institution’s reputation at stake.

• Outline of basic elements for the plaintiff's claim against the university:

  • Engaged in protected activity (reporting to the APA).

  • Allegation of termination as retaliation for that activity.

• Potential arguments by the plaintiff discussed, including:

  • Nature of whistleblower claims and protective actions.

  • Different interpretations of interaction with APA and its effect on employment status.

Evidence Gathering and Witnesses

• Strategies to interview witnesses directly involved in the case:

  • Administrative incompetence will require evidence from multiple sources.

• The challenge posed by the possibility of the jury judging based on the narratives presented versus the documents collected.

• Emphasis on the risk of misinterpretation of documents by the jury.

• Importance of ensuring witnesses remain consistent and credible in their testimony.

Mediation Requirement and Next Steps

• Mandatory mediation consideration in New Hampshire discussed:

  • Aimed to resolve disputes without trial costs.

  • Mediation does not imply any admission of guilt.

• Timeline expectations set for potential trial in February, with discovery and depositions scheduled to happen beforehand.

• Action items summarized:

  • Draft discovery requests to be sent.

  • Schedule interviews with potential witnesses.

  • Confirm the list of subjects included in automatic disclosures.

• Conversations surrounding witness preparation and how to address potential biases during legal proceedings highlighted.