The plaintiff in the underlying lawsuit claimed she was sexually assaulted on multiple occasions while incarcerated at the Maverick County Detention Center, operated by the defendant, GEO Group. During the plaintiff’s deposition, she was confronted with recordings of telephone calls which had not be identified or produced as part of the initial disclosures under Rule 26. The plaintiff filed a motion for sanctions, and the underlying case settled; nevertheless, sanctions of $1,000 per attorney were imposed.
The sanctioned attorneys argued on appeal that they used the recordings “solely to impeach Olivarez’s credibility; therefore, they were not required to disclose the recordings under Rule 26(a)(1), which specifically states evidence need not be disclosed if ‘the use would be solely for impeachment.’”
The Court found, however, that “the recordings of Olivarez’s phone calls likely had some impeachment value because they were at least arguably inconsistent with Olivarez’s testimony during the deposition regarding her conversations with her mother and her friend Juan. But the recordings also had substantive value because they seemed to suggest that Olivarez may have consented to the sexual encounters with Valladarez. The recordings tended to establish the truth of a key issue Defendants raised as a defense in the case — that Olivarez had ‘initiated consensual sex’ with Valladarez. Accordingly, the recordings were, at the very least, in part substantive, and the district court did not abuse its discretion in concluding that Appellants were required to disclose the recordings under Rule 26(a)(1).”
Olivarez v. GEO Group, 844 F.3d 2000 (5th Cir. 2016).