In a glaring demonstration of how incoherently Infosys is handling the lawsuit brought against the company by Infosys employee and whistleblower Jay Palmer, the company's attorneys deposed Palmer on Friday to question him on the same counts that they had earlier filed a motion to dismiss. That left Infosys in the terribly awkward position of procuring discovery material related to the very counts it contends are invalid and therefore insufficient to compel Infosys to produce the discovery material requested by Palmer's attorney.
As I reported in my Jan. 24 post, "With Options Limited, Infosys Tries Dismissal Tack in Palmer Case," Infosys a day earlier had filed a motion in the U.S. District Court for the Middle District of Alabama to dismiss five of the six counts listed in Palmer's suit. Those counts related to the retaliation and harassment Palmer suffered after he blew the whistle on alleged violations of U.S. immigration, visa and tax laws. Kenny Mendelsohn, Palmer's attorney, on Friday filed a 15-page brief in opposition to the motion to dismiss, in which he cited case law to challenge each of the Infosys attorneys' arguments. This was his conclusion:
Mr. Palmer's Complaint is well-plead; it details the wrongful conduct; and it sets out viable and plausible causes of action under Alabama law. Infosys has initiated discovery, including the taking of Mr. Palmer's deposition today. This motion should be denied and Mr. Palmer should be entitled to conduct his discovery. Infosys will have a right to revisit these issues at the summary judgment level if it desires. However, with all due respect, this is just not a case to be decided on a motion to dismiss.
Present to take Palmer's deposition earlier in the day were Jay St. Clair, Infosys' outside counsel representing the company in the Palmer case; and Jeffrey Friedel, Infosys' corporate counsel and, ironically enough, the person who advised Palmer to file the whistleblower complaint. (Read my Aug. 1, 2011, post, "Internal Changes Are Needed to Prevent Visa Misuse, Infosys Admitted." I disclosed in that post the full text of an email from Friedel in which he acknowledged internally that Palmer's complaint warranted corporate action and compelled Infosys' management to make changes to prevent misuse of the B-1 visa program.)
I spoke with Mendelsohn on Saturday, and asked him about the deposition. This is how he described it:
It was a very professional deposition. They questioned him for over six hours, and Jay explained the retaliation, harassment and suffering he's been through, solely because he did what Jeff Friedel told him to do, and followed Infosys' whistleblower policy. It was very uneventful.
If the fact that Infosys deposed Palmer at all was peculiar, given that it was extracting discovery information related to counts that it claimed in a motion filed in federal court were invalid to compel the release of discovery information, the fact that it was so uneventful helps to explain the head-scratcher. Infosys' attorneys in the civil case appear to be grossly uninformed, and have no real sense of the significance of Palmer's suit or what it is they're dealing with. It's as if they're wearing blinders so that all they can see are Palmer's charges in the lawsuit, which relate to harassment and retaliation, with absolutely no appreciation for the seriousness of the allegations of visa and tax fraud outlined in his whistleblower report, which is what generated the harassment and retaliation in the first place. They appear to be very happy to leave the whole visa and tax fraud mess to Stephen Jonas, the outside counsel who's representing Infosys in the matter involving the federal government's criminal investigation.
The magnitude of the situation appears to be lost on the Infosys attorneys in the civil case, who are approaching it in the same formulaic manner they approach any number of other civil cases they're dealing with. Mendelsohn put it this way:
There are a bunch of cases out there against Infosys-racial discrimination cases, sex discrimination cases, religious discrimination cases-and I think they're treating this just like any old, run-of-the-mill lawsuit against them.
But consider just how stunningly shortsighted that is. When this case goes to trial in August, the jury is going to hear in excruciating detail all about Infosys' wanton violation of our immigration, visa and tax laws, because it will need to fully understand what Palmer was blowing the whistle on to appreciate the sinister nature of the harassment and retaliation he suffered. Wearing blinders at this point will eventually prove to be horribly imprudent, if not downright negligent. If Infosys' attorneys don't get that, should we be at all surprised that they don't get the deposition process?