Rogers’ attorneys hope the findings result in the dismissal of a sexual abuse case Brindle brought against Rogers.
For the past nine months, attorneys for Rogers have tried to gather more information about Brindle’s recording and whether her own lawyers, David Cohen and John Butters, were involved in helping to make it.
Cobb Superior Court Judge Robert Leonard found that in June 2012, Cohe and Butters sent their client, Brindle, to a private investigator’s office, who ordered Brindle a “spy camera,” which she used to make a video in Roger’s bedroom without his consent.
As a part-time housekeeper from 2003 until she resigned June 29, 2012, Brindle also made 15 audio recordings of sexual encounters, and kept a towel with her boss’s DNA, according to court documents.
In July 2012, Cohen sent Rogers a letter alleging Rogers had engaged in a “long history of unwelcome sexual demands and other sexual harassment and abuse” toward Brindle. The letter went on to imply that unless the matter was “resolved early and outside public litigation,” Rogers would experience media attention, “injurious publicity,” “divorce and destruction of families” and “lengthy incarceration.”
The letter prompted Rogers to ask the court to seal any recordings.
In response, Brindle’s attorneys sued Rogers for battery and emotional distress.
Details of how Brindle went about recording Rogers were revealed for the first time Friday. Judge Leonard held a closed hearing to review the recordings and question Brindle.
For almost a year, Brindle’s attorneys have blocked her from answering questions such as how she obtained the recording device, how many recordings she made, and who advised her to make them, said Marietta attorney Robert Ingram, who represents Rogers.
Brindle is quoted in the court documents saying, “If it was my word against him, I would have lost. I don’t think anyone would believe me.”
Yet the video failed to show that Rogers forced Brindle to do something she didn’t want to do, according to Friday’s court findings.
Brindle testified in the closed hearing that the tape-recorded sex act was a typical example of the relationship she and Rogers had during her 10 years of employment.
“The video recording makes it clear that (Brindle) was a willing participant in the sexual encounter and is not the victim of a sexual battery,” the order states.
Ingram said the reason he wants to question Brindle under oath is to have her reveal what he believes is a conspiracy between her and her attorneys, Butters and Cohen, who allegedly helped in the illegal surveillance of Rogers.
Brindle “used the advice of counsel to assist in the perpetuation of a crime,” Judge Leonard found.
The court found there is no attorney-client privilege to further a crime, fraud or unlawful act.
“This whole thing was a set-up,” Ingram said.
Butters and Cohen could face legal charges that are punishable by up to five years in jail, Ingram said, but that would be decided by the Fulton County District Attorney, since Rogers’ house is in Fulton County.
“We will be adding the lawyers as defendants,” Ingram said.
Ingram went on to say that he will file a motion to disqualify Butters and Cohen as Brindle’s attorneys if they do not step down voluntarily.
For his part, Cohen said there is no basis for a criminal case against him or Butters.
“We did not advise her to go film him,” Cohen said.
Ingram said he wants the illegal video, which is currently impounded by the court, to be destroyed and for the civil lawsuit Brindle filed against Rogers to be dismissed.
Chairman’s side revealed
Ingram said Rogers, who remains the chairman of the board of Waffle House after stepping down as CEO, is finally seeing justice by the release of Judge Leonard’s detailed findings.
Rogers has admitted to the affair, but the recording that shows him naked in his bedroom engaged in a sex act was an invasion of privacy, Ingram said.
Ingram said his client respects a gag order the court placed on both parties and has been waiting for vindication.
“He wants his life back,” Ingram said.
Cohen said there was no romantic relationship between Brindle and Rogers, and that she was expected to perform sex acts on Rogers if she wanted to keep her job.
Brindle sued Rogers for sexual abuse and emotional distress to ensure that such harassment could not happen to others, Cohen said.
Friday’s findings are part of a discovery process that now requires Brindle to answer exact questions about the video during an hour-long deposition at a yet-to-be determined date.
Cohen said they plan to move forward and take the case to trial because Brindle wants her story to be heard by a jury.