A judge has ruled a woman who sued a Waffle House executive for sexual harassment may have illegally videotaped their sex acts as part of a case that involves two high-profile lawyers in Cobb County.
The ruling comes out of a lawsuit filed by a longtime personal employee of Waffle House CEO Joe Rogers, who has admitted to having “infrequent consensual sexual encounters” between 2003 and 2012 with the woman. She was a housekeeper in his home.
The woman, who is not being named because she is an alleged victim of sexual harassment, has said Rogers fondled her and routinely pressured her into performing sex acts. She contended she surreptitiously videotaped one of their sexual encounters to prove she was a victim of sexual battery.
But Friday Cobb County Superior Court Judge Robert Leonard issued a ruling that “the video recording makes it clear that (the woman) was a willing participant in the sexual encounter and is not the victim of sexual battery.”
He also ruled that certain conversations between the woman and her attorneys, John Butters and David Cohen, were not protected by attorney-client privilege because of evidence they were in furtherance of a crime, specifically the surreptitious filming of a sex act with Rogers.
“Based upon the evidence presented at the crime-fraud hearing, the court finds there has been a prima facie showing that the (woman) was planning the illegal video recording of (Rogers) when she sought the advice of defense counsel, John Butters and David Cohen, and their assistance was obtained in furtherance of the illegal activity and was closely related to it,” Leonard ruled.
“The court makes no findings as to Cohen and Butters’ involvement in (the woman’s) illegal activities,” the judge said in the ruling.
It is a felony in Georgia to videotape a person in a place with an expectation of privacy without their consent.
Cohen said he and Butters did not encourage or assist the woman in the videotaping of the sex act, which took place in Rogers’ bedroom. She hired them on June 6, 2012, and made the video on June 20, 2012.
Robert Ingram, an attorney for Rogers, said the ruling bolstered his client’s claim the woman was trying to extort millions of dollars from him when Cohen sent a letter last July to Rogers telling him the woman had “numerous video and audio recordings.” He said it also will allow them to explore whether her attorneys helped plan the videotaping.
“I am a victim of my own stupidity, but I am not going to be a victim of a crime — extortion,” Rogers said last November in a written statement admitting to sexual relations with the woman but denying he ever coerced her.
In his ruling, the judge said the letter from the lawyer accuses Rogers of a long history of unwelcome sexual demands and abuse and implies that unless the matter is resolved outside public litigation Rogers would experience “injurious publicity,” “criminal charges” and “divorce and destruction of families.”
Cohen described it as a typical demand letter and said the case was not about money. “The demand letter did not set out any monetary demand,” he said. “She wanted to expose him for his wrongful actions.”
Rogers’ lawyers can now question the woman under oath about whether her lawyers advised her to videotape Rogers without his consent, and about who instructed her to use a spy camera shaped like a cellphone, Ingram said.
The woman’s lawyers previously had stopped her from answering questions about who assisted her in a deposition, citing attorney-client privilege, Ingram said.
“The court has said it looks like Butters and Cohen were assisting in criminal activity therefore [the judge is] lifting … the attorney- client privilege,” Ingram said. “Basically, what the judge did is say, attorneys are not above the law.”
Cohen said they cited the attorney-client privilege because her answers would have involved an investigator they had referred her to.
The ruling arises from an odd and circuitous legal battle that involves both Cobb and Fulton counties, and it is the second rebuke from a judge that the woman and her lawyers have drawn in the past month.
Rogers had sued in Cobb after receiving the demand letter to stop the woman from disclosing any of the information and asked a judge to put the case under seal. The case eventually was sealed.
The woman then sued Rogers in Fulton for sexual harassment after negotiations broke down in Cobb, and requested the judge there not seal the documents. Under the law, a case usually has to be filed where the defendant lives.
On May 22, Fulton County State Court Judge Susan Forsling ordered the woman and her lawyers to pay Rogers nearly $143,000 in attorney fees because she concluded the Fulton lawsuit’s main purpose was to circumvent the Cobb court’s order sealing the case and to harass Rogers.
Cohen said the woman’s lawyers planned to appeal the legal-fee order.
