Defendant Dodges Sanctions But Pays Plenty
August 27, 2014During the course of this case, the defendant made numerous changes to his deposition testimony post hoc. Ultimately, it was discovered that the defendant’s counsel had drafted the changes and told their client to adopt them. The trial court judge, outraged at this behavior, forced the defendant to disclose emails reflecting that conduct (on the theory that they fell under the crime/fraud exception to attorney-client privilege). Not surprisingly, the plaintiff had a field day attacking the defendant’s credibility at trial, leading to a multi-million dollar verdict in its favor, including substantial punitive damages.
After trial the plaintiff moved for sanctions based on the plaintiff’s conduct, which the trial court awarded. On appeal, the Court of Appeals reversed, because the motion for sanctions should have been brought before trial and because, even under the trial court’s inherent power to sanction, the Court concluded that allowing the plaintiff’s counsel to use emails between the defendant and his counsel for cross examination was “enough to make the point” and further sanctions were excessive.
