• October 6, 2010

Lawyers and litigants alike generally recognize the distinction between “process” and “rights,” a.k.a. between procedure and substance.  The categories are generally distinct — one has rights, for example, whether through the common law, ordinances, regulations,  statutes, or the constitution — and then one has the means to vindicate those rights (or sometimes not) — one is entitled to “due process” (or sometimes not).   In law school, lawyers learn that the line between substance and process is not often clear.  They learn about “substantive due process” and they learn that certain legal rules — statutes of limitation, for example — might be argued to be “substantive rights” or “procedural rights.”

The lines between substance and procedure also blur when litigation conduct (that is, procedure) has an impact on substantive rights.  The most extreme example is when litigation misconduct is deemed so  severe that it actually is decisive in adjudicating a party’s substantive rights (an example from the Minn. Ct. of Appeals, this week, is here).   Short of that rare extreme, however, litigators need to recognize that litigation conduct can have significant repercussions for a case’s ultimate adjudication, as U.S. District Court Judge Donovan W. Frank (D. Minn.) recently reminded defense counsel in the ACLU’s case against Tarek ibn Ziyad Academy.

At issue in the resent motion practice was the ACLU’s interest in speaking with former TiZA teachers and staff and defendants’ apparent muscle-flexing (that is, apparently reminding former employees of confidentiality agreements, non-disclosure agreements, and possibly threatening lawsuits) to discourage such communications.   U.S. Magistrate Judge Jeanne J. Graham (D. Minn.) ruled in favor of the ACLU.  Judge Frank rejected TiZA’s objections to Judge Graham’s order, saying, in part:

[I]n the Court’s view, the relevant question with respect to the parties’ present dispute is why TiZA, a public charter school, does not want to allow its former and current employees to participate in the informal discovery process to ascertain the truth about how TiZA operates.  In the Court’s experience, current and former employees of an institution are often fruitful sources of information regarding the operations of that institution. In addition, it appears that information related to TiZA’s business, finances, operations, and office procedures is public data and cannot be kept secret. Despite this, it also appears that TiZA, a public institution, is behaving more like a private institution by maintaining that a confidentiality clause in its employee handbooks may be grounds for termination or legal action if a current or former employee provides relevant, public information in this action. Without deciding the issue, it appears to the Court that any such confidentiality agreement is contrary to public policy when applied to a public employer like TiZA.

TiZA should also be aware of the evidentiary implications of seeking to prevent its current and former employees from participating in the discovery process. It is clear from TiZA’s submissions to the Court that TiZA does not want its employees to provide  relevant information pertinent to this action. Regardless of the validity or enforceability  of TiZA’s employment contract, the Court may be required to weigh the evidentiary implications of TiZA’s conduct should TiZA attempt to prevent current or former  employees from providing information in this action.  Specifically, the Court may be  required to draw adverse inferences about how TiZA operates as a result of TiZA’s  efforts to keep information about its operations secret.  In addition, it should go without  saying that, apart from the employment contract issue, intimidation and threats will not sit well with a fact-finder such as a jury. From what the Court can discern on the record  currently before it, TiZA’s behavior during the discovery process thus far in the case has  not been consistent with a good faith search for the truth.

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