The attorney representing Infosys employee and whistleblower Jay Palmer in his visa fraud lawsuit against the company has begun making plans to present his case to a jury in federal court in August. Those plans include obtaining sworn testimony from current and former Infosys employees, and from employees of some of the company's highest-profile clients in the United States.
As I reported last week in my post, "Federal Judge Schedules Infosys Visa Fraud Trial for August," U.S. District Court Judge Myron H. Thompson has scheduled the trial to start during a two-week window beginning Aug. 20. In his scheduling order, Thompson set a timetable for the completion of discovery materials, the phase in which Palmer's attorney, Kenny Mendelsohn, will gather additional evidence by requesting documents from Infosys and deposing - that is, questioning under oath - current and former Infosys employees. He said that process has already begun:
We've already started a little bit of the discovery process - we're going to be filing some paperwork probably the first part of [the week of Dec. 4] to require Infosys to produce certain documents. Either they will, or they'll object to it, and then we'll have to go to court and ask the court to order them to if they don't produce the documents. We'll start getting more of their internal stuff that Jay doesn't have. He's got a lot of documents, but there are other things we're going to need to do. After that, we'll start taking depositions of some of the key witnesses in this case.
Mendelsohn said those key witnesses will include some of Infosys' top clients, and he explained what he'll be looking for:
Documentation of the use of the B-1 employees at their sites, and to be able to further prove that those folks were actually working and were not at meetings, as the welcoming letters would have suggested. There will also be questions and information sought about the labor costs, and what they were paying Infosys for the use of these employees, and how Infosys charged it back. A lot of that relates to Jay, in his whistleblower complaint, pointing out that Infosys was getting reimbursed for the labor costs, and that they weren't paying federal withholding tax, social security, Medicare, things like that.
Mendelsohn said that process will go into full swing in early January.
As I noted in last week's post, Thompson's order stipulated that the two sides are required to engage in good-faith negotiations at a face-to-face settlement conference by the second week of May. The order also contained a suggestion that the two sides consider voluntary mediation as a means of facilitating a settlement. You may recall that Thompson had earlier denied Infosys' motion to compel arbitration in the case, so it might be helpful to distinguish between arbitration and mediation. This is how Mendelsohn explained the difference:
In the case of arbitration, it's like a court - you present your evidence to an arbitrator, or sometimes it's three arbitrators, and whatever they rule is the final decision. Mediation is when you sit down - usually in federal court they have you do it with a federal magistrate - and he listens to both sides and tries to help them resolve the case. The idea is that 90 percent of all cases settle, so let's try to settle it today instead of playing the game. But it is non-binding. The mediator has no authority. Everything is confidential, and in fact, the judge never knows [what took place during the mediation]-the mediator writes the judge and says either they settled, or they didn't settle.
I asked Mendelsohn if mediation is a realistic option in this case. His response:
I would have to have something from Infosys indicating to me that they truly, in good faith, want to try to resolve this case, and I go back to what I said before: An apology to Jay Palmer [for calling him a liar] would go a long way. But I think they've learned now that they're not going to be able to come in and just wave some amount of money in front of Jay in the hope he'll take it and drop all this. He is dead set on proving the wrongful conduct and showing he wasn't a liar, and trying to stop Infosys from continuing this kind of illegal conduct.