famous employment discrimination case was dismissed with prejudice as a sanction for witness tampering the district court found that there was clear and convincing evidence provided that proved witness tampering it's not clear from your what that what to testify to he was present he testified to what he heard what he saw and what he felt if you look at the circumstances in this particular case he calls the plaintiff's attorney and says i want to put in writing what i'm going to get from this case what it seems as though as he's trying to sell his testimony to the to the highest purchaser because at the same time that he sent that text messages plaintiff's attorney he's got contact with the worker from the defendant corporation telling an individual hey tell the president i'm going to change my testimony can i get my job back when i straighten out my immigration status so he's trying to play the field and get what's good for him because in his deposition testimony he explains how his economic circumstances changed how he didn't have enough money for rent how he didn't have enough money for food and how his brother's two the question is let me put it phrase it this sway was armando the only person that offered you money for your testimony in this case answer yes ok he was the only one answered yes throughout though there was discussions that there was no dollar providing false testimony as he alleged in his deposition this individual has a reason to lie and to tell not tell the truth to protect himself from criminal prosecution at this book of course but that's also why was the district judges view of it clearly erroneous because i don't believe that the evidence that was provided by the other two witnesses in this case was at all questionable everybody discussed the circumstances and similar circumstances what i think the defendants was were pointing to the court's attention is that originally in december of two thousand and thirteen plaintiff's attorney filed a motion to withdraw because there was no no witnesses to contradict or to win on  returned a similar time and that's how they were disclosed after the judge had given four months to try to find a last ditch effort to provide evidence in the case and those witnesses were found during that time because they both returned the same thing happened at the time that built the grana made that tax he was moving back to california and mr last was was moving back to texas you know this judge asked for all parties to provide their cell phones which all three parties did i'm sorry all three witnesses and the plane it there has not been one particular piece about it instead it's a specific facts something you can look at like in the cases that are cited by the fence in support of their brief where you have actual false document or an actual person stating yes i was to tell a lie i was to tell something that was not true in this case it's completely different there is no finding of bad faith or fraud anywhere in the court's order in fact the court doesn't even express how it came to the conclusion that there was clear and convincing evidence what is clear and convincing evidence have to do with this that is the court of the united states has said that there's only one standard in civil litigation but it doesn't matter what the issue is the standard is proponents of the us every time court of appeal says there's any other standard he gets the supreme court of the united states which is a go we have a series of cases in the supreme court dating back to the early one nine hundred seventy s telling the rest of the federal judiciary do not use any standard other than preponderance in civil litigation last year reversed the federal circuit unanimously in what seems to me a very curt and exasperated opinion when the federal circuit used a clear convincing standard and it said basically have you been to law school why should we be using a standard that the supreme court has and fattened told the inferior federal courts not to use his this is not a burden of proof in a civil matter it is there is a burden of proof in a criminal way that there is nothing criminal about this fraud is this is a civil suit it was dismissed and if you're going to talk about the clear convincing standard for fraud the very first case in the supreme court sequence disapproved of the use of clear and convincing evidence to show fraud that's how this line of cases began with the supreme court's conclusion the fraud is no different from any other civil issue but just because of the same sins that are imposed it's a it's a punish the sanction that was imposed was this suit was dismissed it was decided for the defendant right that's what happens in all civil suits but it's still quite if winds were the defendant wins in this case the defendant won but that has been described as draconian and to be sparingly and that's another issue judge this is a constitutional issue whether or not my client was discriminated against because of his national heritage whether he lost his position of a point because of that factor or should such a entered of review in any employment discrimination case involving sex race religion is preponderance of the evidence that's overstating your job that's in the case itself it's not a motion to dismiss do you have that he had that he was guilty of witness tampering and that is a pernicious abuse of the litigation process and we would have to say that judge they go and be used his discretion and what we have here can certainly be viewed as an  in my time is up there are as long as your biggest question you can of course respond i judge i think that the qif term is tampering i don't think that's what the evidence in this case showed there's no evidence that in fact the testimony that was provided by any of the witnesses was was evidence that plaintiff told and the say what the facts in this case show is that we have three witnesses who testified to the similar facts that supervisor would come and that would leave at four thirty he would harass this particular individual and one of the reasons is because my client you're responding to george rotors question i don't believe that i'm going to argue the merits case i don't believe there's any evidence of fraud or changing the witness's testimony in this case what that particular issue is to protect witness tampering is not to get witnesses before the court is to get witnesses before the court and provide false testimony or yes your honor they did what party is trying well it and this is where it's very important your honor because it highlights that for seven years there was no evidence of discrimination or retaliation particularly as a claim to be alleged based on national origin and this is important your honor to highlight for the court since two thousand and eight when plaintiffs began his employment claim and in his original complaint plaintive allege no facts of discrimination based on national origin national origin for the first time in his of his amended complaint and this is very poor tired like for the colored plaintiff alleges that defendants employee harassed and caressed him by calling him a stupid mexican and called him a borel which is spanish were gone three years later and after over a dozen positions further to highlight your honor's question there was absolutely no evidence to support plaintiff's allegation so much so that plaintiff's own counsel fil a motion to withdraw in january of two thousand and fifteen and as as judge sakal aptly stated and told the court as a last ditch effort plaintive showed up surface with three witnesses who had previously could not be day which was made fifteen or twenty fifteen because these two witnesses were leaving the state of illinois and after that date they again needed to be located all of in another very key point all of this all of them offered the same testimony judge judge label personally was able to see and witness the credibility of this witness and even at that hearing found it questionable but even as plain to try says it didn't say that there are inconsistent testimony these two witnesses including the way it ran out there's no question they ended it that the three witnesses medical restaurant three times and discussed with plaintiff what their testimony would be and the reason the court that i also found this mr francisco hernandez testimony credible was that he was saying that play didn't offer him money but that the process server who served him with a subpoena came to him and offered to have tried to bribe him by offering him his job back at and it proceeds on to what that the ford highlight it let me put it this way was a man of the only person that offer you money for testimony in this case yes and in addition as the judge sable noted plaintiff took advantage of because this this is a heightened standard which even their relational height the standard well supreme court has held to the opposite agree agree i think you can count on us to follow the supreme court agreed rather than fifty year old case where the court did use the preponderance of the evidence to find that determination simply put the district court's findings were not clear error there was sufficient evidence to support not just planes at the time to tamper with witness testimony but