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Alleged Witness Coaching via Text in Deposition Was “Discoverable” in Arbitration Proceeding and Could Not Support Vacatur of Arbitration Award
August 19, 2022

The Fifth Circuit Court of Appeals affirmed the confirmation of an arbitration award over protests from a pro se litigant that the award was procured by undue means as a result of opposing counsel “coaching” a witness via text during a remote deposition.

The plaintiff claimed that USAA had wrongfully terminated him in violation of the Family and Medical Leave Act because he had taken several months of FMLA leave. During the ensuing arbitration proceedings, the plaintiff remotely deposed a USAA employee. While the deposition was ongoing, plaintiff’s counsel discovered the witness was texting with USAA’s attorney. Counsel for both parties then contacted the arbitrator off the record and agreed that the witness would thereafter keep her phone out of reach for the remainder of the deposition. Both the witness and USAA’s attorney immediately deleted the text messages.

The arbitrator subsequently rendered an award in favor of USAA. USAA filed a motion in district court to confirm the award. Plaintiff’s counsel sought and was granted permission to withdraw, while the plaintiff proceeded pro se to seek vacatur of the award, claiming, among other things, that the award was procured by undue means under 9 U.S.C. § 10(a)(1) because the arbitrator considered the witness’s deposition testimony despite the texting.

The district court confirmed the award, explaining that the plaintiff was not entitled to vacatur under section 10(a)(1) because he could not show that the improper behavior of USAA was “not discoverable by due diligence before or during the arbitration hearing,” as required by the statute. In fact, the improper behavior not only was discoverable but actually was discovered before the arbitration hearing. Therefore, the plaintiff could not show any undiscoverable improper behavior to support his section 10(a)(1) claims.

On appeal, the Fifth Circuit affirmed the district court’s denial of the motion for vacatur and the court’s confirmation of the award.

Rodgers v. United Services Automotive Association, No. 21-50606 (5th Cir. July 8, 2022).
Authored By
Image: Benjamin E. Stearns
Benjamin E. Stearns
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