Brevard v. Credit Suisse
- Lewis Liman
- 1:23-cv-00428
- U.S. District Court · Southern District of New York
- 3
In Brevard v. Credit Suisse, Judge Liman allowed pro se plaintiff Myra Brevard to withdraw and replace her opposition to arbitration, but did not decide arbitration.
Myra L. Brevard and Credit Suisse, particularly the handling of Brevard’s opposition to Credit Suisse’s motion to compel arbitration and the proposed examination for the disputed emails.
What happened
In Brevard v. Credit Suisse, Myra Brevard sued her former employer, Credit Suisse, alleging violations of disability and health-information laws. Credit Suisse asked the court to require arbitration under its employment dispute resolution program and to dismiss the complaint.
Brevard relied on emails that she said showed Credit Suisse had told her the arbitration program did not apply to her. Credit Suisse disputed the emails’ authenticity and sought forensic examination of Brevard’s email account or electronic devices. Brevard expressed privacy concerns and asked to withdraw the emails and file a new opposition.
Judge Lewis J. Liman allowed Brevard to withdraw her current opposition and file a new one, subject to deadlines of September 26 and October 6, 2023. The court said any forensic examination would be limited to finding the emails and would include protections for personal and privileged information; it did not decide whether arbitration was required.
The detailed version
- Brevard v. Credit Suisse · No. 1:23-cv-00428
- Lewis Liman
- Sept. 20, 2023
Background
Myra L. Brevard filed a complaint without a lawyer against her former employer, Credit Suisse. She alleged violations of the Americans with Disabilities Act and the Health Insurance Portability and Accountability Act. Credit Suisse moved to compel arbitration, meaning it asked the court to require the dispute to be decided in arbitration rather than in court, and also moved to dismiss the complaint. Credit Suisse relied on its employment dispute resolution program.
Dispute About the Emails
In opposing the motion, Brevard attached purported emails between herself and Karen Chung, a Credit Suisse representative. Brevard argued that the emails showed Credit Suisse had represented that its employment dispute resolution program did not apply to her. Based on those alleged representations, Brevard argued that Credit Suisse should be equitably estopped, meaning prevented from taking a position inconsistent with its earlier representations, from compelling arbitration.
Credit Suisse disputed the emails’ authenticity. Chung said she did not remember sending them and that their errors were uncharacteristic of her communications. Credit Suisse’s Global Head of Collaboration Engineering said the company retained internal emails for ten years and had conducted extensive searches without finding the emails. Credit Suisse also argued that the emails’ formatting did not match the company’s email system.
The court scheduled an evidentiary hearing to assess the emails’ authenticity. Credit Suisse then asked Brevard to provide electronic copies of the emails or submit her email account or electronic devices for forensic examination. Brevard maintained that the emails were authentic but raised concerns that examination could expose her financial, medical, and attorney communications. She asked to withdraw the emails from the case and file an amended opposition without them. Credit Suisse opposed those requests.
Order
The court found Brevard’s requests ambiguous. It stated that any forensic examination would be limited to searching for the emails and that the court would include measures to protect Brevard’s personal and privileged information. The court also explained that the emails and examination could remain relevant if Brevard continued to argue that Credit Suisse had represented that she did not have to arbitrate. If she withdrew that argument as well, the emails and examination would no longer be relevant to that issue.
Because Brevard was proceeding without a lawyer, the court granted her leave to withdraw her current opposition to the motion to compel arbitration and file a new opposition. The current opposition had to be withdrawn by September 26, 2023, and the new opposition had to be filed by October 6, 2023. The court also directed Brevard to file a letter by September 22 stating whether her new opposition would continue to rely on Credit Suisse’s alleged representations that she did not have to arbitrate.
This order did not decide whether the parties had to arbitrate or whether Brevard’s complaint should be dismissed. It addressed the opposition, the proposed forensic examination, and the schedule for further briefing.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.