NOTE: Thanks to an attorney reader, who suggested last week that I put my Faruqi trial updates in separate posts to make it easier for people to find them on Google and other search engines. I thought that was a good idea, so I’ll do that with my remaining posts. (Testimony is supposed to wrap up this week, and possibly today.) Prior coverage is available here and here.
PARENTAL ADVISORY: This is testimony in a sexual harassment case, so it’s necessarily NSFW (Not Suitable For Work. Unless you’re an employment lawyer or HR professional, in which case it’s AIADW (All In A Day’s Work).) Seriously, I’m going to use euphemisms wherever I can, but be warned that you still may find the following offensive.
Juan Monteverde, the rainmaking partner who allegedly sexually harassed brand-new associate Alexandra Marchuk, testified yesterday about the 3 a.m. “encounter” after the firm holiday party in 2011. Mr. Monteverde denied having sexual intercourse with Ms. Marchuk, saying he’d had 8-10 drinks that night and was too drunk to rise to the occasion. Nonetheless, Ms. Marchuk would not take no for an answer, according to Mr. Monteverde, at one point undressing and arraying herself in the nude on his office floor. Mr. Monteverde testified that Ms. Marchuk eventually did perform oral sex on him. He also admitted to making inappropriate jokes at work about a legal adversary named “B.J. Warehouse.” (Do I really have to tell you what about?)
Ms. Marchuk’s attorneys are seeking an “adverse inference” instruction about the carpet in Mr. Monteverde’s office. As I’ve previously reported, there was allegedly blood on his carpet as a result of the 3 a.m. “encounter.” Mr. Monteverde asked his office manager to clean the carpet the next day, and when her efforts to scrub it out failed, they called a professional who used a power washer. In 2013, Mr. Monteverde’s carpet was replaced completely, but no one else’s carpet was. Ms. Marchuk’s attorneys say that the carpet replacement, done after the lawsuit had been filed, constitutes spoliation of evidence.
Attorneys for the law firm say that Ms. Marchuk is the one who suggested on the night of the “encounter” that Mr. Monteverde “spill” coffee over the stain to cover it up. They also say that Ms. Marchuk was the one who said that the stain was blood. (I’m still not sure why Ms. Marchuk would have thought the carpet was stained with blood if you believe Mr. Monteverde’s story, but anyway.) The office manager testified last week that she thought it was a coffee stain based on what Mr. Monteverde had told her the following day. She also testified that the carpet was replaced in 2013 only because Mr. Monteverde scooted his chair across it too much, wearing it out.
The judge has not made a ruling on the spoliation issue yet.
While you’re eating this dessert, I will slip in your vegetables: The spoliation issue in this case is a good reminder that spoliation does not apply only to electronic evidence like emails, or even documents, but also to “brick and mortar” evidence, like blood-stained carpets.
Thanks as always to Law360 (paid subscription required) for providing such excellent daily coverage of this trial.