Lisa Velasquez Olivarez claimed that a GEO employee sexually assaulted her while she was incarcerated in the Maverick County Detention Center. She made recorded phone calls from prison to her mother and a friend, suggesting that the sexual contact was consensual. She sued for violation of her civil rights.
The attorneys for GEO and the employee submitted initial disclosures that failed to disclose the audio recordings. During Lisa’s deposition, GEO’s attorneys questioned her about the phone calls, and the employee’s attorney later played the recordings. After the deposition was over, they provided her attorney with an online link to the recordings. Her attorney asked for sanctions for failure to disclose the recordings. The trial court awarded sanctions. GEO and the employee appealed. Olivarez v. Geo Group, 844 F.3d 200 (5th Cir. 2016).
On appeal, they argued that there was no obligation to disclose the audio recordings because they were solely impeachment evidence. Under Rule 26(a)(1) evidence need not be disclosed if “the use would be solely for impeachment.” The Court rejected this argument, finding that the audio recordings were at least in part substantive because they tended to establish the truth of a key defense – that the sex was consensual.
Next, defense counsel argued that the failure to disclose was “substantially justified.” Substantial justification for failure to make a required disclosure is “justification to a degree that could satisfy a reasonable person that the parties could differ as to whether the party was required to comply with the disclosure [obligation].” But all of the cases they cited were from courts outside the Fifth Circuit; controlling Fifth Circuit precedent required disclosure. Therefore, the Fifth Circuit held that their failure to disclose was not substantially justified and affirmed the award of sanctions.
