Pope v. Federal Express Corp.

138 F.R.D. 684, 1991 U.S. Dist. LEXIS 6206, 1991 WL 210417
CourtDistrict Court, W.D. Missouri
DecidedMay 1, 1991
DocketNo. 88-1245-CV-W-1
StatusPublished
Cited by3 cases

This text of 138 F.R.D. 684 (Pope v. Federal Express Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pope v. Federal Express Corp., 138 F.R.D. 684, 1991 U.S. Dist. LEXIS 6206, 1991 WL 210417 (W.D. Mo. 1991).

Opinion

ORDER

WHIPPLE, District Judge.

On June 1, 1990, 138 F.R.D. 675, this Court entered an order finding that plaintiff Carol J. Pope was in violation of Federal Rules of Civil Procedure 11 and 26(g); and the Court ruled that it would impose sanctions on Ms. Pope and dismiss her cause of action pursuant to Rule 41(b) because of her dishonest conduct in this case. The sanctions and dismissal were based on the Court’s finding that Ms. Pope used a manufactured document (Exhibit 203) to advance her case, knowing it was a manufactured document.

The Court will only summarize the basis for that finding in this order, but for a full understanding of the background for the Court’s findings that Exhibit 203 was a cut- and-paste manufactured document, the Court incorporates herein the findings contained in the Court’s June 1, 1990 ruling. The Court will also impose appropriate sanctions on plaintiff Carol J. Pope within this order.

By a subsequent order issued on November 28, 1990, Ms. Pope’s attorney, Gwen G. Caranchini, was ordered to appear before this Court and show cause why she should not be held in violation of Federal Rules of Civil Procedure 11, 16(f), 26(b)(1), 26(g), 37(b) and 41(b), for continuing to rely on the manufactured document after it became obvious that her client knew the document was false and manufactured. Ms. Pope’s knowledge of the fact that the document was manufactured was demonstrated by Ms. Pope at her October 12, 1989 deposition, as spelled out in the Court’s June 1, 1990 order finding Ms. Pope in violation of Rules 11 and 26(g). Ms. Caran-chini should have recognized at the October 12, 1989 deposition that the document had to have been manufactured by either Ms. Pope, or by someone else, with her knowledge and consent.

On December 21, 1990, pursuant to this Court’s Show Cause Order issued on November 28, 1990, Ms. Caranchini appeared with her attorney, Mr. Robert Ball, to present her evidence. Defendants were present through their attorneys, John Lilia and Lindsay K. McFerrin.

MS. CARANCHINI’S EVIDENCE

Ms. Caranchini testified that she heard her client, Ms. Pope, testify at her supplemental deposition on October 12, 1989, that the manufactured document, which had been labeled as Deposition Exhibit 203, was a photocopy made from the original document that she had, sometime in June, 1987, lying on her desk at work, when some person in her absence came by and wrote “Carol, you ‘feel’ good. Danny ” on the document. At the end of the deposition, Ms. Caranchini asked Ms. Pope about the original document; Ms. Pope told her she no longer had the original document from which she made the photocopy. Ms. Pope then explained to Ms. Caranchini that she had found the photocopy of the document (Exhibit 203) folded up in an old notebook in September of 1989, and that she made a photocopy of that photocopy and faxed it to Ms. Caranchini.

[686]*686Ms. Caranchini testified that she concluded that an original never existed and, therefore, Exhibit 203 must have been manufactured. Ms. Caranchini then conducted an investigation to determine if anyone in her office had obtained the source document from which the manufactured document was made and had given it to Ms. Pope, or if Ms. Pope had access to the Federal Express documents, and thus may have been able to obtain the source document herself.

During discovery, Federal Express delivered eight boxes of documents on June 9, 1989, to Ms. Caranchini, which she stored in an unused room in her office. Ms. Car-anchini testified after the October 12, 1989, deposition that she spent about one and one-half hours going through the boxes of documents to find the source document which was identified as a “Coaching checklist” (Exhibits designated FEL 42 and FEL 124), which were two copies of the same document from which the “you feel good” language of the manufactured document came. She then asked her staff if any of them had given the source document (FEL 42 or 124) to Ms. Pope or if Ms. Pope had the opportunity to go through the eight boxes of documents, and thus obtain the source document herself. Ms. Caranchini then checked her time records to determine on what dates Ms. Pope had been in Ms. Caranchini’s office.

From her investigation, Ms. Caranchini concluded that none of her staff had found and given the source document (FEL 42 or FEL 124) to Ms. Pope, and that Ms. Pope could not have had access to the boxes in the storage room to obtain a copy of the source document herself.

Ms. Caranchini then testified that after her investigation she was satisfied that Ms. Pope could not have obtained the source document from her office, and thus concluded that Ms. Pope did not create the manufactured document. Upon making that determination, Ms. Caranchini concluded that someone other than Ms. Pope had manufactured the document and planted it so Ms. Pope could find it. After reaching this conclusion, Ms. Caranchini decided that her responsibility to her client was to continue to advocate the admission of the manufactured document into evidence at trial.

Ms. Caranchini contended that if she didn’t use the document, the defendant would because that was the only physical evidence Ms. Pope had against defendants. Ms. Caranchini believed that someone at Federal Express or defendant Collins had manufactured the document because defendants knew that plaintiff was being sexually harassed. Ms. Caranchini testified that she was aware that Ms. Pope alleged that someone came by her desk and wrote the words, “Carol, you feel’ good! Danny”on a document. The document was a revenue goal document that Ms. Pope used in her job which she claims was lying on her desk when someone came by and wrote that inculpatory statement on it. Ms. Pope claimed that when she discovered someone had written this comment on her revenue goal paper she made a copy of it, and that is the copy she found in September of 1989.

On the second day of the hearing, Ms. Caranchini’s attorney presented evidence through the testimony of Ms. Caranchini’s employees. Ms. Delores Kliethermes, a legal assistant for Ms. Caranchini, testified that she reviewed the daily calendar, the telephone message book and time sheets to determine when Ms. Pope had been in the office. Ms. Kliethermes testified that she reviewed all the above records for the period of June 1989 through January 1990. A few minutes later, after Ms. Caranchini’s attorney showed Ms. Kliethermes that there were records for all of 1989, she then testified that she had reviewed the records for all of 1989. Ms. Kliethermes testified that the office policy is to make a note of every incoming telephone message; to note on a time sheet or calendar each time a client comes in; and to make a note on a time slip if she gives a document to a client. The time sheets indicate Ms. Pope was not in the office from June 1, 1989 through September 27, 1989. However, Ms. Kliethermes later testified that Ms. Pope was in the office July 20, 1989, July 21, 1989, and July 22, 1989, although there are no time slips for July 20, 1989 or July 21, 1989, showing that Ms. Pope was in the office on those dates. Ms. Kliethermes [687]*687then attempted to explain it away by stating that time sheets which were dated July 26, 1989 appeared to have been marked out and the number 21 or 22 written in. Ms.

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Bluebook (online)
138 F.R.D. 684, 1991 U.S. Dist. LEXIS 6206, 1991 WL 210417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pope-v-federal-express-corp-mowd-1991.