Jottings By An Employer's Lawyer

Friday, July 11, 2003

The Demise of a $1.5 Defamation in the Workplace Verdict from the Rio Grande Valley


The modern world of computer forensics was front and center in yesterday's decision in Columbia Valley Regional Medical Center v. Bannert (Tx. App. - Corpus Christi 7/10/03). At issue was the authorship of a document, allegedly a memo to the hospital CEO written by the Chief Nursing Officer laying out a secret plan which would lead to the discharge and discrediting of Bannert, one of the senior nurse managers in the hospital. In reversing the jury's determination that the secret memo was defamatory, and setting aside its award of $1.5 million, the Court found that in context the memo stated only opinion, not fact; and that it was not defamatory. Although not saying it quite so bluntly, the Court in effect found that the hospital did not say negative things about Bannert, but rather good things, and it was because of the good aspects of her performance that the secret plan to undermine and discredit her was going to be necessary.

That argument might not have been as appealing to the Court if it had not also found that their was no evidence that the CNO had written the "secret memo". Although dated 9/1, it was supposedly found by one of Bannert's subordinates on the hospital's main system on November 12. However, an investigation by the IT department of the hospital and experts for both sides at trial, concluded that the document was not placed on the hospital system until November 15th. Furthermore, the two testifying experts agreed that its path was from the computer of Bannert's subordinate who found it, to the computer of Bannert and then to the shared drive of the hospital. Although supposedly from the CNO, who vehemently denied writing it, there was no tie to any computer linked to her. The only support for the jury's verdict that it was authored by the CNO was the plaintiff's expert's conclusion that since there had been some confusion in producing computers for examination by the experts, he felt that the hospital had been trying to "pull a fast one" and that therefore the memo must have been written by the CNO. Noting that conclusion was contrary to any of his actual findings, the court held that there was no evidence to support the CNO was the author of the document, and thus no evidence to support the verdict.

This is a good case to read to see why employment law is so often interesting from a factual standpoint. It is also a reminder of how high the stakes can be. Finally it provides a word of caution to anyone who might try to 'fake' computer information, about the actual trail that computer files leave.


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