The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Khan v. Yale University #TheyLied Case Dismissed Because of Plaintiff's "Egregious" Litigation Misconduct
Not the misconduct itself, but noted in the court's opinion as one of the items plaintiff had sought to withhold from discovery: "During a separate text conversation on May 11, 2018, Plaintiff texted Mr. Roe: 'If I had 5 dollars for every gender, I would have 5 dollars coz women are objects.'"
This is the case in which the Connecticut Supreme Court held that an accuser's allegations in college disciplinary proceedings are not absolutely privileged against defamation claims in a future lawsuit. But today, Judge Kari Dooley (D. Conn.) dismissed that libel lawsuit (Khan v. Yale Univ.); here's most of the conclusion to that long opinion, which follows a detailed recitation of various misconduct:
As to the document production, while the Court agrees that the production of over 70,000 pages of largely irrelevant materials has all the hallmarks of a classic "document dump," the Court does not, on the present record, infer that it was Plaintiff's intent to forestall impending depositions or the conclusion of discovery. It certainly had that effect, and such an effect was absolutely predictable, but the misconduct was in the production itself of largely unresponsive and irrelevant documents.
The indirect publication of Jane Doe's name through precisely the same method found by this Court to be egregious and intentional is shocking. It appears that Plaintiff will not be deterred. Notably, he did not seek reconsideration of this Court's decision or findings [requiring that he not disclose the name -EV], he simply chose to ignore them. And with respect to the instant motion, he merely reiterates the arguments the Court has already rejected.
The inaccurate and false sworn Interrogatory responses reveal that Plaintiff will withhold damaging information in discovery so as to increase the likelihood of his success on the merits. As discussed above, it is clear his lawyer knew nothing of the sexual misconduct claims made against Plaintiff by women other than Jane Doe and simply relied upon Plaintiff's self-report. When questioned by the defense, Plaintiff's counsel confirmed that he had checked with Plaintiff about any other complaints. Nothing. And as discussed above, the Court finds his claim to have interpreted the Interrogatory as applying only to claims that resulted in criminal charges as straining credulity beyond its breaking point.
Consistent with Plaintiff's efforts to conceal these other complaints, are Plaintiff's efforts to conceal his communications with Peter Roe through a specious assertion of attorney-client or work product privilege and a false and misleading privilege log. And the significance of this litigation misconduct is hard to overstate. As Defendants rightly assert—they do not know what they do not know. Defendants reasonably assert that the entirety of the privilege log is now subject to challenge—a costly, time-consuming and resource draining undertaking—all occasioned because Plaintiff has demonstrated that he cannot be relied upon to simply tell the truth.
Plaintiff has been cautioned by the Court multiple times that his misconduct could have consequences, to include dismissal of his complaint. The Court has previously denied two motions to dismiss based upon litigation misconduct. Simply put, there is no fair, just or reasonable path forward for the defendants…. {It has been said, "Oh, what a tangled web we weave, when first we practice to deceive." Sir Walter Scott, "Marmion." This well-embedded idiom of modern culture, first published in 1808, captures the truism that when you lie or act dishonestly, you initiate a domino-like structure of complications and problems which will eventually spiral out of control. Very unfortunately, this idiom also precisely describes this case.}
Civil litigation is rooted in "notions of fairness on which our legal system is founded." When one party repeatedly commits egregious misconduct and, in turn, unfairly disadvantages the opposing parties, dismissal is an appropriate sanction. It is well-settled that it is within the Court's discretion to issue sanctions, including dismissal…. There is no question that Plaintiff has willfully ignored the Court's orders—despite multiple warnings—and engaged in escalating misconduct for a prolonged period….
The Court can discern no lesser sanction to address the repeated and escalating misconduct by Plaintiff in this case. He has been fairly warned, warnings which he did not heed. Seeing no viable path forward for a fair and just adjudication of the claims and defenses in this case, the Motion to Dismiss is GRANTED….
Note that Khan (who is from Afghanistan) has had an asylum application pending since 2016, and it appears to have been unresolved as of October 2024. I don't know if the application remains pending, and what effect the resolution of this case will have on that application.
James M. Sconzo and Brendan N. Gooley (Carlton Fields, P.A.) and Patrick M. Noonan, Giovanna Tiberii Weller, and Maria L. Laurato (Carmody Torrance Sandak & Hennessy LLP) represent defendants.