Our client had an employee performing work at an average level, with intermittent failings resulting in frustrations for the department head. Making the matter more difficult, soon after the more serious mistakes were discovered, the employee claimed he needed FMLA leave for depression.

When the litigation started, we proceeded as we normally do—an in depth, on-line search of the employee to see what was out there that we may use to our benefit or to at least understand the plaintiff to the greatest extent possible before sitting them down for deposition. We learned that this employee claimed he was unable to work due to depression, but he was doing “podcasts” on the side as a hobby. We had no obligation to disclose what was discovered prior to his deposition, so when he initially testified that he needed his FMLA time because of his severe depression, his lawyer lost all interest in the case when we revealed his podcasts that were being recorded at the same time he was allegedly too depressed to work. Once his credibility was lost, his case was too. His lawyer, not surprisingly, asked for a $25,000.00 settlement. We recommended to our client and our client agreed that no settlement money should be paid. It would be a benefit to the plaintiff to drop the case without risking the imposition of fees or costs against him, and his lawyer had no interest in proceeding on a contingency arrangement given his client’s actions. The case was settled and dismissed for no money.