Lying during litigation
April 26, 2012 5 Comments
While litigation is an adversarial process, the parties are not free to hide documents or lie under oath. I know that may come as a shock to some people (especially attorneys), but it is the truth. Sometimes, clients and/or attorneys lose sight of that fact and try to cheat. Other times clients just fail to take their discovery obligations seriously. In either event getting caught can be fatal to the case.
For the lying plaintiff, the sanction most commonly requested by the defendant is the dismissal of the plaintiff’s case. The seminal case from Mississippi on this issue is Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss. 1997). Pierce involved a plaintiff in a personal injury case that had her case dismissed with prejudice by the Hinds County Circuit Court, as a sanction for discovery violations, because the plaintiff concealed the identity of a material witness. Specifically, the Court discovered the plaintiff gave false testimony (through responses to various interrogatories, deposition testimony, and trial testimony) that she was alone at the time of her injury. Later, Ms. Pierce admitted she gave false testimony, and maintained her purpose was not to deceive the Court, but to protect her parents from the fact she was accompanied by a male companion in bed at the time of her injury. Pierce, 688 So.2d at 1387-1388.
For the lying defendant, the sanction most commonly requested by the plaintiff is for the Court to strike the answer and enter default judgment. In essence, the plaintiff asks the Court to prohibit the defendant from being able to defend itself. While this sanction is rarely imposed, it is certainly possible as the City of Jackson found out today.
In City of Jackson v. Rhaly,, NO. 2009-CT-00350-SCT (Miss. 2012), the Mississippi Supreme Court upheld the trial court’s death penalty sanction of striking the defendant’s answer for “gross indifference to its discovery obligations…” Despite numerous valid discovery requests, the City failed to produce a manual that was described as “critical” to the plaintiffs’ case. In fact, the plaintiff only discovered the existence of the manual six days prior to trial while reviewing documents filed by the City in a similar case. The City also provided misleading or deceptive responses regarding other similar claims or lawsuits in the prior five years.
I am glad to see parties held accountable for failure to provide truthful responses. However, there should be some sort of enhanced penalty for the responsible party. As it stands now, if a plaintiff lies about the case and gets caught, the penalty of dismissing his/her case is no more detrimental than if the plaintiff would have told the truth and lost the case. Likewise, if a defendant makes a conscious decision to hide the trial winning, smoking gun document and gets caught, the Court enters a default judgment. Again, this is the same result as producing the document to the plaintiff and losing the case. In both instances the parties have an incentive to game the system in hopes of not getting caught.
EDIT – I should have reviewed the Court of Appeals decision in Rhaly. I didn’t see any sanction other than the default mentioned by the MSSC and assumed that was the only sanction imposed. It appears Judge Yerger also hit the City with over $30k in attorney’s fees as well.