by Donald A. Blackwell
Okay, so maybe offering false or misleading testimony in a civil deposition is not a legally or constitutionally sufficient basis for impeaching a sitting President, particularly in good economic times. However, the reality is that an ever-increasing number of state and federal courts, in Florida and elsewhere, are taking a much harsher and more aggressive approach toward civil litigants and nonparty witnesses, who, in an effort to create or bolster a claim for relief or otherwise obstruct the judicial process, repeatedly lie under oath. The result is a whole new set of potential problems for lawyers of less than candid clients and an arguably underutilized weapon in the arsenal of the vigilant litigator, who is willing to devote the time, energy, resources, and patience to uncover the truth. The following is a brief overview of the cases at the forefront of this evolving area of the law.1
Let’s assume, for the sake of discussion, that you’ve just completed the deposition of an opposing party and, while you are not yet in a position to prove it, you’re convinced that the witness lied about a myriad of issues relating to his educational background, his employment history, his history of other accidents, his medical history, and his social history. Fortunately, you have a client who is as outraged as you are and expresses a willingness to fund a “no stone unturned” investigation geared toward uncovering the truth. After several months of digging and thousands of dollars in fees and costs, you discover you were right. The paper trail of your opponent’s life is littered with medical and psychological records that he previously concealed, employment and insurance records that belie his testimony that no such claims existed, academic records that directly contradict testimony regarding years of schooling completed and degrees obtained, proof of substance abuse, and, perhaps, evidence of an alter ego.
The issue then becomes what to do with this treasure trove of information. Traditionally, litigators have focused their efforts on the courtroom, marshalling and stockpiling impeachment evidence and then skillfully weaving it into a dramatic cross-examination. Their hope is that their dishonest adversary will crumble on the witness stand, under the weight of the contradictions and inconsistencies in their sworn testimony, and that the jury ultimately will punish their opponent’s lack of candor by returning an adverse verdict. Often, this strategy works. However, for societal and psychological reasons that are well beyond the scope of this article, there also are times when the more traditional approach does not work or, worse yet, backfires. In such instances, jurors sympathize with the beleaguered party, whom they already view as a victim, and punish the diligent litigator and his or her client for what they perceive to be unwarranted and unjustified intrusions into the offending litigant’s background and private life. Fortunately, there is an alternative which allows the skillful litigator to bypass the jury and still achieve the desired result.
It is hornbook law that state and federal courts have “the inherent power to regulate litigation and to sanction litigants for abusive practices.” Vargas v. Peltz, 901 F. Supp. 1572, 1579 (S.D. Fla. 1995). See also Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1545 (11th Cir.), cert. denied, 510 U.S. 863 (1993) (recognizing that federal courts have the inherent power to impose reasonable and appropriate sanctions on those appearing before them); Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) (“[A] federal district court possesses the inherent power to deny the court’s processes to one who defiles the judicial system by committing a fraud on the court”); Pope v. Federal Express Corp., 138 F.R.D. 675, 683 (W.D. Mo. 1990), aff’d in part, vacated in part on other grounds, 974 F.2d 982, 984 (8th Cir. 1992) (court has inherent power to sanction litigants for improper conduct); Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 126 (S.D. Fla. 1987) (stating the general rule).
It is equally well-established that those inherent powers include the authority to dismiss the claims or defenses of or enter a default judgment against a litigant who engages in dishonest conduct, obstructs the discovery process, abuses the judicial process, or otherwise seeks to perpetrate a fraud on the court. See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 630–632 (1962). See also Aoude, 892 F.2d at 1118; McDowell v. Seaboard Farms of Athens, Inc., 1996 WL 684140, 2-3 (M.D. Fla. 1996) (cases cited therein); Sun World, Inc. v. Lizarazu Olivarria, 144 F.R.D. 384, 389 (E.D. Cal. 1992) (holding that, when a litigant commits a fraud upon the court, “the inherent powers of the court support the sanction of dismissal and entry of default judgment”); Pope, 138 F.R.D. at 682 (dishonest conduct by a party or conduct that “threatens the integrity of the judicial process” is grounds for dismissal with prejudice under Rule 41(b)); Amway Corp. v. Shapiro Express Co., 102 F.R.D. 564, 569–70 (S.D.N.Y. 1984); Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998); Kornblum v. Schneider, 609 So. 2d 138 (Fla. 4th DCA 1992).
As a general rule, a litigant is deemed to have perpetrated a fraud on the court when “it can be demonstrated, clearly and convincingly, that a party has “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the [trier of fact] or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox, 706 So. 2d at 46 (quoting Aoude, 892 F. 2d at 1118). The “clear and convincing” standard is an intermediate standard of proof between a “preponderance of the evidence” and “beyond a reasonable doubt.” Smith v. Department of HRS, 522 So. 2d 956 (Fla. 1st DCA 1988). For evidence to be “clear and convincing” “[it] must be of such weight that it produces in the mind of the trier of a fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). See also Small Business Admin. v. Echevarria, 864 F. Supp. 1254 (S.D. Fla. 1994).
Historically, courts have reserved the harsh sanction of dismissal for instances when a party deliberately or willfully does not comply with court orders. See, e.g., Bailey v. Woodlands Co., 696 So. 2d 459 (Fla. 1st DCA 1997); Ferrante v. Waters, 383 So. 2d 749 (Fla. 4th DCA 1980) (trial court properly struck defendant’s pleadings and entered default, pursuant to Fla. R. Civ. P. 1380, based on defendant’s failure to comply with court order compelling her to answer plaintiff’s interrogatories for nearly six months). See also Levine v. Del American Properties, Inc., 642 So. 2d 32 (Fla. 5th DCA 1994) (affirming a default entered against a defendant who failed to appear for his deposition three times); Marr v. State, Dept. of Transp., 614 So. 2d 619 (Fla. 2d DCA 1993) (trial court did not abuse its discretion in dismissing plaintiff’s complaint, with prejudice, based, in part, on plaintiff’s noncompliance with discovery order); Dominguez v. Wolfe, 524 So. 2d 1101 (Fla. 3d DCA 1988) (wherein the court affirmed the dismissal, with prejudice, of a medical and dental malpractice claim, based on plaintiff’s failure to comply with pretrial order requiring plaintiff to disclose the names of her expert witnesses); Johnson v. Landmark First Nat’l Bank, 415 So. 2d 161 (Fla. 4th DCA 1982).
Repeated neglect or contumacious conduct by counsel also may form the basis for an order of dismissal with prejudice, so long as the trial court concludes that the conduct satisfies the criteria that the Florida Supreme Court established in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994). The Kozel factors include:
1) Whether the attorney’s disobedience is willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
2) Whether the attorney has been sanctioned previously;
3) Whether the client was presumably involved in the act of disobedience;
4) Whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;
5) Whether the attorney offered reasonable justification for noncompliance; and
6) Whether the delay created significant problems of judicial administration.
Kozel, 629 So. 2d at 818. Compare Elder v. Newton, 711 So. 2d 586 (Fla. 2d DCA 1998) (dismissal was “too drastic and severe” when there was no evidence that the plaintiff “played an active role in abusing the discovery process”); Cole v. Bayley Prods., Inc, 661 So. 2d 1299 (Fla. 4th DCA 1995) (reversing default judgment on the grounds that the sanctionable actions were the fault of defendant’s former counsel instead of the defendant himself).
However, an increasing number of Florida courts have relied on their inherent authority to sanction litigants for abusive practices as a basis for dismissing or striking the claims of litigants who repeatedly lie under oath. See, e.g., Cox, 706 So. 2d at 47 (a litigant’s repeated lies and deception “must be discouraged in the strongest possible way”); Savino v. Florida Drive-In Theatre Mgt., Inc., 697 So. 2d 1011 (Fla. 4th DCA 1997) (trial court properly dismissed personal injury claim of plaintiff, with prejudice, when plaintiff lied under oath and to his treating physicians about his educational background, his ability to work, and his level of intelligence); O’Vahey v. Miller, 644 So. 2d 550 (Fla. 3d DCA 1994); Kornblum v. Schiender, 609 So. 2d 138 (Fla. 4th DCA 1992); Horjales v. Loeb, 291 So. 2d 92 (Fla. 3d DCA 1974). See also Hazel Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238 (1944) (wherein the Court noted that “tampering with the administration of justice . . . is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society”).
In O’Vahey, for example, a personal injury plaintiff repeatedly lied under oath about his personal background and education. The trial court, in turn, dismissed plaintiff’s claim as a sanction, notwithstanding the fact that the plaintiff’s “established perjury did not directly concern the cause of action itself.” O’Vahey, 644 So. 2d at 551 n.1. The Third District Court of Appeal affirmed, holding that plaintiff’s lies “constituted such serious misconduct and such an obvious affront to the administration of justice that [the Court could] not interfere with the trial judge’s discretionary determination to dismiss the action outright.” Id. (citations omitted). The court went on to note that its decision was influenced in part by the fact that the circumstances of the alleged accident and the extent of plaintiff’s alleged injuries were “at least seriously open to question.” Id. at n.1. See also Figgie Int’l, Inc. v. Alderman, 698 So. 2d 563, 567–68 (Fla. 3d DCA 1997) (citing O’Vahey for the proposition that “the ultimate sanctions of dismissal or default are justified by the repeated presentation of false testimony under oath which was ultimately uncovered by the assiduous efforts of opposing counsel”).
The court in Cox reached a similar result. Cox was a legal malpractice action arising out of the defendants’ alleged failure to advise the plaintiff that they would not represent her in a medical malpractice case until the day after the expiration of the applicable statute of limitations. During the pendency of the legal malpractice action, the plaintiff repeatedly lied, under oath (i.e., in interrogatories, in her deposition, and in an affidavit), about, among other things, her identity and her prior medical history. Specifically, the plaintiff testified at her deposition that she had not sustained any injuries prior to those that formed the basis for her underlying medical malpractice action and that she had never seen an orthopedist. The defendants, however, discovered medical records and other evidence which demonstrated the falsity of plaintiff’s testimony. Cox, 706 So. 2d at 45, 46. The defendants, in turn, moved to dismiss plaintiff’s claim, based on her misconduct, and the trial court granted the motion. The Fifth District Court of Appeal affirmed the dismissal. In reaching its decision, the court reasoned as follows:
The integrity of the civil litigation process depends on the truthful disclosure of facts. A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct [i.e., giving false or misleading answers in sworn discovery that either appear calculated to evade or stymie discovery] must be discouraged in the strongest possible way. Although [plaintiff] insists on her constitutional right to have her case heard, she can, by her own conduct, forfeit that right.
Id. at 47. The court went on to conclude that, by her misconduct, the plaintiff had, in fact, forfeited that right.
The claims of the plaintiff in Savino met the same fate. Savino claimed that he had suffered brain damage and lost wages as the result of a fall on the defendant’s property. Plaintiff also claimed that he had a master’s degree in engineering from New York University and testified that he had been unable to work since the accident. Through discovery, the defendant established that the master’s degree diploma from NYU that the plaintiff had produced was fraudulent, that plaintiff also had lied to his treating physician about his academic background and above average level of intelligence, and that plaintiff had, in fact, worked as an independent contractor since the accident. Defendant then moved to dismiss plaintiff’s claims based on fraud on the court and the trial court granted the motion. The Fourth District Court of Appeal affirmed. The court reasoned that the plaintiff’s “repeated fabrications” went to the heart of his claims and “undermined the integrity of his entire action.” Savino, 697 So. 2d at 1012. The court concluded that, under such circumstances, “the trial court has the right and obligation to deter [such conduct]” and properly did so by dismissing plaintiff’s claim with prejudice. Id. (emphasis added). See also Vargas, 901 F. Supp. 1579.
Similarly, in Figgie Int’l, the trial court struck the pleadings of and entered a default against a corporate defendant, whose conduct it characterized as “the most egregious case of discovery abuse [the] court [had] ever seen.” Figgie Int’l, 698 So. 2d at 564. According to the trial court’s findings of fact, which were adopted by the Third District in affirming the trial court’s order, the defendant: 1) had lied about its retention and use of outside human factors experts in the design and labelling of its open end sectional scaffold in sworn answers to interrogatories; 2) had concealed pertinent data relating to other accidents involving the same model of scaffolding in response to plaintiff’s initial discovery requests; 3) initially had testified, through its product safety director, that certain documents did not exist, only to later admit, under oath, that they had disposed of such documents; and 4) had engaged in a pattern of false and evasive deposition testimony calculated to conceal relevant information from the plaintiff. The trial court concluded and the Third District agreed “that the ultimate sanctions of dismissal or default [were] justified by the [defendant’s] repeated presentation of false testimony under oath, which . . . ultimately [was] uncovered by the assiduous efforts of opposing counsel.” Id. at 567, 568.
Federal courts in Florida and elsewhere also have held that a litigant who repeatedly lies under oath forfeits all rights to prosecute his or her claims. In Vargas, for example, Judge Ryskamp dismissed, with prejudice, the Title VII claims of a plaintiff, who 1) had fabricated evidence of the allegedly hostile work environment and lied about the authenticity of that evidence at her deposition; 2) had lied under oath concerning a State Department letter, which she claimed was the product of an attempt by her former employer to “lure” her to Costa Rica and force her to drop her lawsuit; 3) had entered the United States illegally; 4) had provided false information on employment applications; and 5) had lied at her deposition about her prior involvement in jewelry sales. In reaching his decision, Judge Ryskamp emphasized that plaintiff’s misconduct, which included fraud on the court, fabrication of evidence, and perjury, was “designed to and had the effect of obstructing the discovery process and impeding defendant’s ability to conduct discovery vital to its defense” and, therefore, warranted the dismissal of plaintiff’s action. Id. at 1582.
Similarly, in McDowell, the Middle District dismissed, with prejudice, the Title VII claim of a pro se plaintiff, based on its finding that he had fabricated a diary of allegedly discriminatory encounters with his former employer and had lied repeatedly before and during an evidentiary hearing on defendant’s motion to dismiss or strike. The court concluded that it was evident from the fabricated evidence and plaintiff’s perjured deposition testimony, which included lies about his prior arrest record, his involvement in prior discrimination actions, and the basis for his wife’s health problems, that “plaintiff [held] in total disregard the integrity of the judicial system.” Id. at 23, 24. The court then went on to hold that “the gravity of plaintiff’s behavior” warranted the dismissal of his claims with prejudice. Id. See also Pope, 138 F.R.D. at 682 (wherein the court involuntarily dismissed a Title VII sexual harassment claim, based on evidence that plaintiff had fabricated a document which purported to support her claim and then lied about its authenticity and the circumstances relating to its transmission at her deposition and in sworn answers to interrogatories).
The message of these cases for litigants who are intent on trying to deceive their adversary, the courts, their employers, or, in the case of personal injury plaintiffs, their treating physicians is compelling: Proceed at your own risk, because if you are found out there is a strong probability that, at a minimum, you will forfeit your claim for relief or, in the case of deceptive defendants, your right to assert a defense.2 However, the message to practicing attorneys is equally clear: Take time to interview and evaluate the credibility of your own client and witnesses before a problem of credibility arises, educate your client about the civil and, in some instances, criminal sanctions and other penalties that can be imposed against persons or entities who affirmatively misrepresent and/or conceal relevant information in sworn and unsworn discovery responses, and act promptly to correct any such misstatements or deception. If you fail to do so, be assured that there are diligent litigators who eventually will ferret out the truth, and an increasingly intolerant civil justice system that is prepared, with ample precedential support, to mete out the ultimate sanction. q
1 The rules governing a lawyer’s ethical obligations in the context of false testimony are beyond the scope of this article. Suffice it to say, however, that Rule 4-3.3(a)(4) of the Rules Regulating The Florida Bar strictly prohibits a lawyer from knowingly “[p]ermitting any witness, including a criminal defendant, to offer testimony or other evidence that the lawyer knows to be false.” Moreover, it is equally well established that a violation of Rule 4-3.3(a)(4) can result in disciplinary action by The Florida Bar. See Dodd v. The Florida Bar, 118 So. 2d 17, 19 (Fla. 1960) (“No breach of professional ethics, or of the law, is more harmful to the administration of justice or more hurtful to the public appraisal of the legal system than the knowledgeable use by an attorney of false testimony in the judicial process. When it is done it deserves the harshest penalty”). See also The Florida Bar v. Kleinfeld, 648 So. 2d 698, 701 (Fla. 1994) (“An officer of the court who knowingly and deliberately seeks to corrupt the legal process can logically expect to be excluded from that process”) (citing Dodd); The Florida Bar v. Agar, 394 So. 2d 405 (Fla. 1980) (holding that where a lawyer, actively or passively, arranges for a witness to testify falsely, the rule stated in Dodd should be adhered to and the lawyer should be disbarred).
2 Some jurisdictions have gone so far as to criminally prosecute individuals for obstructing the discovery process. In United States v. Lundwall, 1 F. Supp. 2d 249 (S.D.N.Y. 1998), for example, the government indicted two former Texaco employees who allegedly withheld and later destroyed corporate documents sought by the plaintiff in a race discrimination action against the company, and charged them with violating 18 U.S.C. §1503, which makes it a federal offense to corruptly obstruct or impede the due administration of justice, and with conspiracy to obstruct justice in violation of 18 U.S.C. §371. The defendants moved to dismiss the indictment, claiming, in part, that §1503 is not available to punish persons for civil discovery violations. Instead, the defendants argued that the sanctions provided for in Fed. R. Civ. P. 37 were more than adequate to punish them for their alleged discovery abuses and provided ample remedies to the injured plaintiff. The Southern District of New York disagreed. The court held that, even though there is a paucity of authority on the issue, §1503 plainly encompassed the defendants’ alleged misconduct (i.e., the deliberate concealment and destruction of relevant documents), because it was certain to impede or, at least, attempt to impede justice in the underlying civil action. The court also rejected the defendants’ argument regarding the adequacy of Rule 37 sanctions, noting that the indictments did not involve misconduct by a party to the civil action, but rather by individuals who acted independent of their employer and its counsel. In any event, the court held that “a court [is free] to impose civil and criminal sanctions in connection with the same contumacious behavior.”
Donald A. Blackwell is a shareholder in Anania, Bandklayder, Blackwell & Baumgarten, Miami. He is a magna cum laude graduate of Spring Hill College and received his law degree from the University of Virginia School of Law. He is a former adjunct professor of law at Southern Methodist University and St. Thomas University. Mr. Blackwell’s areas of practice include all aspects of commercial and personal injury litigation.