The Fulton County judge overseeing a legal malpractice lawsuit against Gordon Rees Scully Mansukhani declined to strike the firm’s defenses as a sanction for text messages alleged to have been deleted that the plaintiff, comedian Terry Hodges, said could help prove his case. 

State Court Judge Eric Richardson said he was troubled by the defense’s “problematic” explanations about the texts but that there was not enough evidence that they had been intentionally destroyed—or even existed.

“I have concerns—there is smoke,” said Richardson at the close of a hearing Wednesday afternoon.

But “ultimately, there’s just not enough evidence to prove expoliation of evidence in this case,” said Richardson.

In any case, he said, there is already damning email traffic that “lays out in pretty stark terms” what was going on in 2015, as the defendant firm partners scrambled to dump their former client Hodges after realizing they also represented a defendant he was suing: entertainment giant Netflix.

“We’ve got in the record what the defendants were thinking and saying at the time,” said Richardson. “I don’t see where it substantially prejudices [Hodge’s] case, even if the evidence was destroyed.”

Hodges hired Gordon Rees in 2015 to sue fellow comic Chris Tucker and Netflix, claiming that  Tucker owed him for production and writing services and had reneged on a promise to give Hodges co-producer credit for Netflix’s “Chris Tucker Live” movie. 

Gordon Rees is accused of concealing that it represented Netflix, then working to have Netflix dismissed from Hodges’ suit before finally dumping him.

Hodges continued the litigation pro se before settling confidentially. 

In 2016, he sued the firm along with name partner Paul Mansukhani and partners Charles Mulrain, Richard Sybert and Joni Flaherty.

In May, Hodges’ lawyers, Wallace Neel of New Yorks’ Law Office of Wallace Neel and Roswell solo Warren Hinds, asked Richardson to strike the firm’s defenses as a sanction for discovery abuse and spoliation. 

They pointed to filings by the Gordon Rees’ former lawyers testifying that, pursuant to Richardson’s orders, “every law firm partner and every named defendant” had checked their personal devices for messages about Terry Hodges, and that none had been found.

But in depositions earlier this year, it said Sybert and Flaherty testified that they hadn’t searched their personal devices. Mansukhani said he couldn’t recall, then later said he had searched. 

Hodges’ motion argued that the texts should have been preserved because they were part of his client file.

On Wednesday, Neel said the defense had been stonewalling and changing its story throughout.

“We’re asking that this conduct be brought to an end,” said Neel. “Gordon & Rees has never taken their responsibilities seriously.”

The firm was on notice as early as 2015 that it was going to be sued, and all evidence should have been preserved, he said.

If the firm escaped unpunished, “they’ll feel like it was worth it, that they got away with it,” Neel said. 

Defense attorney Mark Lefkow of Carlock Copeland & Stair said the motion was another ploy in a case marked by “scorched earth” pleadings and tactics.

“There has to be some evidence these tests even existed,” said Lefkow, who represents the firm with Carlock Copeland partner Joe Kingma.

“It is not appropriate to strike our defenses in advance of our motion for summary judgment,” Lefkow said.

In the end, Richardson agreed with the defense.

“I don’t think there’s evidence of bad faith,” he said. “I do think there was notice to preserve this evidence. I just don’t think it has bad faith on it.”