Dismissal Not A Sanction For Plaintiff’s Untruthful Deposition Testimony

The plaintiff’s civil complaint should not have been dismissed after she allegedly gave false deposition testimony because dismissal was too harsh a sanction, the Michigan Court of Appeals has ruled.

In Swain v Morse (Docket No. 346850), the trial court had dismissed the plaintiff’s verified complaint as a discovery sanction for her untruthful deposition testimony.

The Court of Appeals reversed.

There is no court rule to support dismissal for untruthful deposition testimony and no Michigan appellate court “has held that the court’s inherent authority extends so far as to dismiss a case based on the court’s conclusion that a party did not tell the truth in a deposition,” the Court of Appeals said.

Further, even if the plaintiff offered false deposition testimony, other sanction options could have been pursued, including using other evidence to impeach the plaintiff’s credibility, the Court of Appeals said.

Judges Jane M. Beckering, Karen M. Fort Hood and Douglas B. Shapiro were on the panel that issued the published opinion.

Restaurant Encounter

The plaintiff’s claim involved a 2017 incident at a Farmington Hills restaurant. The plaintiff, Renee Swain, asserted that she met the defendant, Michael Morse, at the restaurant and, while taking a selfie with him, the defendant grabbed her breast and squeezed it.

The plaintiff contacted the police after the incident and wore a wire in a meeting that was organized by the restaurant owner (a friend of the defendant). At that meeting, the defendant apologized to the plaintiff but did not admit groping her. The plaintiff said that she forgave the defendant and hugged him. The Oakland County prosecutor subsequently declined to pursue charges against the defendant.

The plaintiff then filed a sexual assault and battery lawsuit against the defendant. The suit has been ongoing for several years, having been appealed and remanded to the Oakland County Circuit Court at least three times.

The present case involves the dismissal of the plaintiff’s claim against the defendant that was brought in December 2018. At deposition in the case, the plaintiff was asked about money that she received from a friend, including how much and how often. The defendant had asserted that payments from the friend had ended shortly before the incident at the restaurant, thereby giving the plaintiff a financial incentive to fabricate a claim against the defendant.

Upon reviewing the deposition testimony and the bank records that the defense had obtained, the trial court found the information did not match the plaintiff’s deposition testimony. As a result, the trial court ruled the plaintiff had “lied under oath” and the alleged false testimony warranted dismissal of the lawsuit as a discovery sanction.

The plaintiff appealed.

Other Options

The Court of Appeals reversed the dismissal of the plaintiff’s claim, for several reasons.

First, the plaintiff did not violate any court order, the Court of Appeals observed. Second, the plaintiff’s testimony did not undermine the integrity of the judicial process because the defendant “was able to obtain contradictory evidence through discovery and plaintiff’s veracity can be addressed at trial through impeachment.” Third, although the friend’s financial support was relative, it was “not dispositive” and the defendant was not substantially prejudiced by the plaintiff’s testimony.

Moreover, dismissal is a “drastic step” and there is no court rule that addresses sanctions for false deposition testimony, the Court of Appeals explained. “The cases relied on by the trial court involved violation of orders or court rules and repeated efforts to stall discovery. None concerned allegations that a party lied at deposition, let alone a court finding to that effect.”

The plaintiff’s deposition testimony “did not violate any court rule or order, and so sanctions were not authorized by MCR 2.504(B)(1) for noncompliance with a rule or order,” the Court of Appeals wrote. “Contrary to the trial court’s opinion, deposition testimony is not subject to the duty to supplement discovery responses under MCR 2.302(E). At the time this case was decided, MCR 2.302(E) allowed the imposition of sanctions when a party failed to supplement a response to a ‘request for discovery’ that the party knows was ‘incorrect when made.’ … But a deposition is not a response to a request for discovery. A response to a discovery request is something that is capable of being signed by the attorney. … Also, the rules refer to responses and depositions as distinct items.”

According to the Court of Appeals, the court rules governing depositions provide for sanctions in only one circumstance in MCR 2.306(D)(2). That court rule says: “[O]n motion, the court may impose an appropriate sanction - including the reasonable expenses and attorney fees incurred by any party - on a person who impedes, delays, or frustrates the fair examination of the deponent or otherwise violates this rule.”

Further, MCR 2.313(B)(1) allows for sanctions based on the deponent’s failure to follow a court order, the Court of Appeals pointed out. That court rule says: “If a deponent fails to be sworn or to answer a question after being directed to do so by a court in the county or district in which the deposition is being taken, the failure may be considered a contempt of court.”

Neither of these court rules allows for sanctions based on the substance of the deponent’s testimony, the Court of Appeals stated. “That the court rules contemplate sanctions for deposition-related misconduct, but not false testimony, strongly suggests that the Supreme Court does not view sanctions as an appropriate response to false deposition testimony. The lack of a court rule addressing sanctions for that misconduct is understandable when one considers that there are several existing disincentives for untruthful deposition testimony. First and foremost, a party’s credibility can be impeached at trial with deposition testimony. Also, a deponent may be charged with perjury for willfully false testimony on a material fact. … Further, if it is ultimately determined that the complaint lacked evidentiary support other than the plaintiff’s false statements, the prevailing party may seek costs and attorney fees under MCL 600.2591(a)(ii) for a frivolous action on the grounds that ‘[t]he party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.’”

Inherent Authority

Next, the Court of Appeals noted the lack of authority to impose sanctions for untruthful deposition testimony under the court rules raised the question of whether a court may do so under its inherent authority to sanction litigant misconduct.

“No Michigan appellate court has held that the court’s inherent authority extends so far as to dismiss a case based on the court’s conclusion that a party did not tell the truth in deposition,” the Court of Appeals observed.

There are, however, a “few cases of record examining the scope of misconduct that would justify dismissal or default in the absence of a court order or rule violation,” the Court of Appeals said, citing Cummings v Wayne County, 210 Mich App 249 (1995), and Maldonado v Ford Motor Co, 476 Mich 372 (2006).

“Cummings and Maldonado concerned serious misconduct that went to the ability of the court to assure a fair trial,” the Court of Appeals wrote. “Witness intimidation and jury tampering are ‘administration of justice’ issues because they make it impossible for a jury to make a reliable decision. In contrast, untruthful deposition testimony does not threaten the integrity of the judicial system. A witness can be impeached at trial and the jury can consider whether a witness was lying in making its credibility determination. In fact, the jury’s verdict will in many, if not most, cases be an implicit finding that one of the parties has given untruthful testimony. It is therefore doubtful whether dismissal for intentionally false deposition testimony is ever appropriate.”

“[T]he hallmarks of the type of misconduct warranting dismissal are not present in this case,” the Court of Appeals concluded. “[T]he interests of justice would be better served by a lesser sanction than dismissal, and the trial court abused its discretion in concluding otherwise.”