On October 22, 2021, Mitsubishi Chemical filed a motion with the Southern District of New York alleged that former company Assistant and Acting General Counsel Jennifer Fischman forged a document to bolster her discrimination suit against the company.
In 2018, Fischman sued Mitsubishi, alleging the company failed to promote her to a leading role due to her gender and terminated her after she complained about gender discrimination. In June 2021, Fischman produced in discovery handwritten notes dated March 1, 2016. Fishman contends the notes memorialized a conversation between Fischman and a male colleague accusing him of discriminating against another female employee. In the notes, Fischman wrote that she feared retaliation by the colleague. Fischman produced these notes three years into the litigation and almost two years after initially responding to Mitsubishi’s discovery requests.
Doubting the validity of the document, Mitsubishi engaged a forensic ink chemist to determine the date of the note’s creation. The expert opined that he was “virtually certain” that the note was not created on March 1, 2016 and was instead created within the past two years. The expert based his opinion on high levels of a chemical in the ink that indicated it was written in the past two years. Mitsubishi filed a motion seeking dismissal of her suit as a sanction for her alleged forgery. Mitsubishi argued Fischman should be held to a higher standard because she is an attorney. Counsel for Fischman countered that the expert’s analysis does not meet reliability standards and its methodology is “underdeveloped.”
Obviously, this is a troubling development for Fischman’s case. If the court finds that Fischman forged the documents, it has the authority to sanction Fischman for the discovery violation and order her to pay Mitsubishi’s fees and costs. Fischman may also face criminal liability and Bar inquiries for her conduct. Courts take a dim view of conduct on the part of a party or its counsel that thwarts the laudable goals of discovery, including forging or altering documents or concealing or spoliating relevant evidence.