Monday, July 12, 2010

Texting A Witness During Trial Propery Led To Dismissal As A Sanction

In Sky Development, Inc. v. Vistaview Development, Inc., et al. (3D10-1274 and 3D09-2843), the Third District affirmed the trial court's final judgment after dismissing the lawsuit.  There were two incidents, one at a deposition and one at trial.  With regard to the incident at the deposition, the court stated:
During the deposition of Sky’s manager, Sky’s Chief Financial Officer passed the deponent a note that read, “Don’t worry about pleasing him. Just say no.” The note was brought to the attention of the magistrate presiding over the deposition; she forbade any further notes.
At trial, the following occurred:
At trial, Sky’s CFO was being questioned about whether Sky received a key document. During a sidebar, while the CFO was still on the stand, Sky’s sole shareholder sent the CFO the following two text messages regarding receipt of the document.
• 10:22:30 a.m.: “We maybe got this document after September 7th when the bank discovered the problem.”
• 10:23:45 a.m.: “We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years, and know every corner.”
The trial court discovered the text messages and declared a mistrial.  The court then granted a motion to enter an order dismissing the case.  The Third District affirmed and held "The plaintiff’s misconduct was certainly a 'blatant showing of fraud, pretense, collusion or other similar wrongdoing'....There was ample evidence for the trial court to conclude that just such an unconscionable scheme was underway here. This is not a case where the dismissal was unreasonably harsh.

This case was also discussed on the Law360 site at THIS link.


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