ANDREA M. SIMONTON, United States Magistrate Judge.
This matter is before the Court upon Plaintiffs' Motion for Sanctions Including Striking of Pleadings Against NCMIC (DE # 294) related to alleged witness tampering. Defendant NCMIC has filed a Response to the Motion, and the Plaintiffs have filed a Reply (DE ## 308, 311). In addition, the Plaintiffs have filed a Motion to Strike the Affidavit, or Portions Thereof Filed by NCMIC in its Response to Plaintiffs' Motion for Sanctions (Witness Tampering) (DE # 312). Defendant NCMIC has filed a Response to that Motion and the Plaintiffs have filed a Reply (DE
In their Motion at bar, the Plaintiffs have requested that the Court impose sanctions against Defendant NCMIC for the alleged actions of Greg Cole, president of NCMIC, during the deposition preparation of Fred Scott, a former NCMIC employee (DE # 294). Specifically, Plaintiffs contend that Mr. Cole might have committed solicitation to commit perjury and witness tampering under Florida law and endeavoring to influence a witness under Federal law by coaching Mr. Scott to untruthfully assert a lack of knowledge as to certain topics during his deposition. In support of this contention, the Plaintiffs cite to Mr. Scott's deposition testimony wherein, according to Plaintiffs, after identifying the documents that he reviewed in preparation of his deposition, Mr. Scott testified that he did not remember writing certain documents and did not understand other documents that he authored. To further evidence their contention that Mr. Cole improperly tampered with a witness's testimony, the Plaintiffs point to other alleged improper conduct by Mr. Cole related to the potential testimony of other witness. The Plaintiffs assert that when Mr. Cole's witness tampering is combined with NCMIC's other discovery abuses in this litigation, including the failure to produce an adequately prepared 30(b)(6) witness for deposition and the spoliation of a relevant file, sanctions in the form of striking NCMIC's pleadings and entering judgment in favor of Plaintiffs, is warranted.
In Response, Defendant NCMIC asserts that Plaintiffs' Motion should be denied because it is based purely on conjecture and insinuation (DE # 308). In support of this position, NCMIC asserts that it is wholly appropriate, during the preparation of a witness for testimony, to instruct that witness to tell the truth, not guess at answers, and to state that the witness does not know an answer to the question, if that is the case. NCMIC further contends that it would be illogical for Mr. Scott to perjure himself and thereby expose himself to criminal sanctions when he has not worked for NCMIC for four years and has no stake in the outcome of this litigation.
In addition, Defendant NCMIC has filed the Affidavit of Barbara H. Schreibman, former counsel of record for Brican (DE # 308-1). In that Affidavit, Ms. Schreibman asserts that she contacted Mr. Scott in 2009, and that he informed her that he had no recollection or knowledge of the Brican account, or his 2006 letter to Brican (DE # 308-1 at 3).
In Reply, the Plaintiffs contend that the Motion did not violate the Court's April 12, 2012 Order as Counsel for the Plaintiffs believed that, if the Motion were filed as a Motion for Sanctions, the forty page limitation would not apply and that they were not untimely in filing the Motion. The Plaintiffs have also filed a Motion to Strike the Affidavit, or Portions Thereof, Filed by NCMIC in its Response to Plaintiffs' Motion for Sanctions (Witness Tampering) wherein Plaintiffs seek to strike the Affidavit of Barbara Schreibman contending that the Affidavit contains double hearsay (DE # 312).
In Response to that Motion to Strike, NCMIC contends that the Affidavit does not contain hearsay, let alone double hearsay, because the Affidavit is not offered for the truth of the matter asserted, i.e., that Mr. Scott had no recollection of the Brican account. Instead, NCMIC asserts that the Affidavit was offered to demonstrate that Mr. Scott's testimony at his August 17, 2011 deposition in this matter was not recently changed after Mr. Scott's deposition preparation meeting with Mr. Cole, but rather was consistent with prior statements that he had made to Ms. Schreibman related to earlier litigation between NCMIC and Brican.
In Reply to the Motion to Strike, the Plaintiffs assert that although the Court may rely upon affidavits in resolving the instant Motion, the affidavit still should be stricken because, as argued previously, it contains double-hearsay (DE # 319). The Plaintiffs therefore ask that if the Court consider the Affidavit that the Plaintiffs be permitted to cross-examine Ms. Schreibman via a deposition to challenge the accuracy of certain statements made by Ms. Schreibman in the Affidavit.
For the following reasons, the Motion for Sanctions for witness tampering is denied. In addition, the undersigned recommends that to the extent that the Plaintiffs request sanctions, in the form of having NCMIC's pleadings stricken and judgment being entered on behalf of the Plaintiffs, for various discovery abuses, that the Court deny that request.
At the outset, it bears noting that in the instant Motion, the Plaintiffs
Title 18 U.S.C.A. § 1512, entitled "Tampering with a witness, victim or an informant" provides, in relevant part,
18 U.S.C. § 1512.
Fla. Stat. § 914.22 (Westlaw 2008). Plaintiffs also cite to Florida Statute § 837.02, entitled "Perjury in official proceedings," which states, "... whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree...". Plaintiffs further cite to § 777.04, entitled, "Attempts, solicitation, and conspiracy," which in relevant part states:
Fla. Stat. § 777.04 (Westlaw 2008).
For the following reasons, the undersigned concludes that the Plaintiffs have failed to meet their burden of demonstrating that NCMIC, through Greg Cole, engaged in witness tampering or solicitation of perjury, in order to warrant the imposition of sanctions.
Defendant NCMIC first contends that Plaintiffs' Motion should be denied as it violates the Court's March 12, 2012 Order which granted, in part, Plaintiffs' Motion for Permission to File a Motion and Incorporated Memorandum of Law in Excess of 20 Pages (DE # 271), and instead permitted the Plaintiffs to file a Motion for Sanctions no greater than forty pages (DE # 274). Attached to the Motion requesting to file a Motion in excess of twenty pages was a sixty-six (66) page proposed Motion in Limine seeking sanctions for NCMIC's conduct in discovery related to
The Defendant also contends that the instant Motion was untimely pursuant to Local Rule 26.1(h)(1) because it was not filed within thirty days of the occurrence of the grounds which gave rise to the Motion. Defendant states that the deposition of Fred Scott was taken and completed on August 17, 2011, yet the Plaintiffs did not file a Motion related to that deposition until March 5, 2012, nearly six and one-half months after the deposition.
In response, the Plaintiffs assert that the instant Motion is one for sanctions and not for discovery and thus contend that it is not subject to the thirty day filing requirement under the local rule. In addition, the Plaintiffs assert that even if the Court views the Motion as one subject to the Local Rule, there is reasonable cause for the tardy filing because since the conclusion of Mr. Scott's deposition, Counsel for the Plaintiffs has worked exclusively on the preparation of the motion for class certification and motion for summary judgment (DE # 311 at 2).
Local Rule 26.1(h)(1) provides:
The Rule by its plain language directs that motions related to discovery shall be filed within thirty days of the occurrence, and failure to do so may constitute a waiver of the relief sought. The Rule provides however that the presumption of waiver may be overcome upon a showing of reasonable cause for a tardy filing.
The Plaintiffs' argument that the instant Motion is not subject to the Local Rule because it is a motion for sanctions and not a discovery-related motion is persuasive. The Plaintiffs have not requested additional discovery related to the alleged conduct of Mr. Cole in improperly influencing Mr. Scott's testimony and the Motion is not predicated on a violation of the discovery rules but rather is based upon Plaintiffs' allegation of witness tampering, an allegation that goes to the administration of justice rather than the rules that regulate discovery. Thus, the Motion is
The undersigned now turns to the merits of the Motion.
In the Motion at bar, the Plaintiffs contend that NCMIC president Gregory Cole may have committed solicitation to commit perjury and witness tampering when he purportedly advised Mr. Scott that he should testify, untruthfully, that he didn't recall certain matters. For support of this contention, the Plaintiffs point to, inter alia, the following deposition testimony of Fred Scott:
(DE # 294-1 at 25). Such testimony, however, even if true, fails to establish by a preponderance of evidence that Mr. Cole solicited or suborned perjury or otherwise tampered with Mr. Scott's testimony.
Under Florida law, the crime of criminal solicitation is statutorily defined as "[a] person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense...." Fla. Stat. § 777.04(2). Thus, the elements of criminal solicitation are (1) commanding, hiring, requesting, or encouraging another person to commit a crime, and (2) the intent that the other person commit the crime. The Florida Bar v. Marable, 645 So.2d 438, 442 (Fla.1994). In Marable, 645 So.2d at 442, the Supreme Court of Florida, in affirming a referee's determination in a disciplinary proceeding that an attorney had not engaged in solicitation of burglary, stated:
Id. at 442-43. Similarly, in this case, the statements allegedly made by Mr. Cole, do not, in and of themselves, establish that he intended for Mr. Scott to testify untruthfully about what he remembered related to NCMIC's dealings with Brican. Even the Plaintiffs in their Motion concede that there is "absolutely nothing improper about telling a witness to tell the truth, even if that means the witness must say he does not know the answer to a question." (DE # 294 at 8).
Thus, the statements made in this case are materially different than those made in Jones v. State, 466 So.2d 293 (Fla.Dist.Ct. App.1985), which the Plaintiffs cite in support of their request for sanctions. In Jones, the record demonstrated that after a witness told a defendant that his bank records had been subpoenaed and that the witness was likely to be served with a subpoena to testify under a grant of immunity, the defendant stated "Well, then you have to always say something. That's always the answer from what I've been told. Just don't remember. Don't remember. There's nothing wrong with amnesia." Not surprisingly, the reviewing Court, in that case, determined that the record supported a criminal conviction by the jury for solicitation to commit perjury. In contrast, in this case, the only evidence presented was that after being advised that he should speak truthfully and briefly, Mr. Cole advised Mr. Scott that it was okay if Mr. Scott didn't remember and it was okay to answer he didn't know if he authored a particular letter that he reviewed in preparation of his deposition. Without more, there is insufficient evidence to conclude that Mr. Cole's statement to Mr. Scott was done with the intent to induce, persuade, and instigate the witness to commit the crime of perjury.
In addition, there is no evidence that Mr. Scott's testimony was untruthful. Although the Court acknowledges that in order to prove solicitation of perjury, a litigant need not demonstrate that perjury actually occurred, see Jones v. State, 466 So.2d at 294, given the Plaintiffs' failure to establish Mr. Cole's intent regarding the statements he made to Mr. Scott, absent evidence that Mr. Scott's testimony, was, in fact false, there is not enough circumstantial evidence presented under these facts to conclude that Mr. Cole engaged in suborning or soliciting perjury. See Sithon Maritime Co. v. Holiday Mansion, Case Bi, Civ. A. 96-2262-EE, 1998 WL 638372, *4 (D.Kan. Sept. 14, 1998) (refusing to impose sanctions based upon alleged coached and perjured testimony where such allegations were based speculation and conjecture). The Plaintiffs' belief that Mr. Scott was not being truthful in his testimony is not enough but must be supported by evidence in the record, something that is not present in this case.
Similarly, under Federal Law, to obtain a conviction for witness tampering in violation of 18 U.S.C. § 1512(b)(2)(A) & (b)(3), it must be proven that the person (1) knowingly corruptly persuaded the witness (2) with the intent to induce the witness to "withhold testimony," from an official proceeding. 18 U.S.C. § 1512. Substantially the same elements must be established to
In Quiroz v. Superior Building Maintenance, Inc., Case No. 06-21594-CIV, 2008 WL 3540599, *1 (S.D.Fla. Aug. 12, 2008), for example, in support of the Defendant's Motion to Dismiss for Witness Tampering, the Defendant submitted the affidavit of a co-worker of Plaintiff Quiroz who swore that Mr. Quiroz had contacted him, asked him to testify on his behalf, and offered to pay the co-worker and his wife $1,000.00 for favorable testimony. See Quiroz v. Superior Bldg., et al, Case No. 06-21594-CIV (S.D.Fla.2006) (DE # 37-1). Thus, the Court found that sufficient evidence was submitted to conclude that the Plaintiff had attempted to tamper with a witness. Accord Smart v. City of Miami Beach, Florida, 933 F.Supp.2d 1366, 1380-81 (S.D.Fla.2013) (finding sufficient evidence of attempted witness tampering where record established that plaintiff firefighter had mother make telephone calls to witness to instruct witness to testify untruthfully that their conversations only related to training and rather than plaintiff's attempt to influence other witnesses).
In this case, the Plaintiffs have offered no such evidence of witness tampering, but instead have solely relied upon the responses given by Fred Scott at his deposition, as set forth previously. In this regard, the undersigned notes that the Plaintiffs failed to include the question and answer from Mr. Scott's deposition immediately following the cited testimony, wherein the following exchange occurred:
(DE # 294-1 at 25). This exchange is significant because although Mr. Scott did, in fact, testify that he didn't remember whether he was the author of the letter at issue, he also testified that he did not understand the letter that he purportedly authored, despite his testimony that Mr. Cole did not tell him that it was "okay" to testify in that manner. Thus, rather than concluding that Mr. Scott, who has a Masters Degree in Business Administration from the University of Denver and stopped working at NCMIC in 2007, testified untruthfully at his August 17, 2011 deposition based on Greg Cole's coaching, it is just as likely that Mr. Scott answered the deposition questions in a manner he determined on his own. Indeed, Mr. Scot testified consistently throughout his deposition that he did not recall numerous things, including many things that arguably had nothing to do with establishing NCMIC's liability. By way of example, Mr. Scott testified that he did not recall filling out an application of employment for NCMIC (DE # 294-1 at 5) or when he left the employ of NCMIC (DE # 294-1 at 6). He also testified while he worked for IKON prior to working for NCMIC he didn't recall if IKON had its own credit facility or if he placed leases for his customers with somebody other than IKON Financial (DE # 294-1 at 5), did not recall whether he was trained at IKON by anybody about presenting lease terms to customers or having to communicate with anyone at IKON Financial to answer customer's lease questions (DE # 294-1 at 5), or whether he filled in the monthly payment amount on the paperwork for the customers at IKON.
Further, unlike in Quiroz, the Plaintiffs have not suggested that Mr. Scott was offered anything in exchange for his testimony, or had any motive arising from his interaction with Mr. Cole to alter his testimony in a manner favorable to NCMIC. Thus, the record fails to demonstrate that Mr. Scott was "coached" by Mr. Cole to feign a lack of memory on certain issues. Simply put, there is insufficient evidence in the record to conclude that Mr. Cole tampered with Mr. Scott prior to his deposition in this case. See e.g. Moore v. R.T.L. Construction, Inc., 2011 WL 4729861, *2 (D.Minn. Oct. 6, 2011) (affirming Magistrate Judge's decision that, despite Court's concerns about certain possible retaliatory actions taken by defendant related to a witness' eligibility for unemployment presumably designed to influence the witness, insufficient evidence existed in record to establish that defendant took such actions for purposes of intimidating witness and therefore witness tampering sanctions not appropriate).
On the contrary, according to the Affidavit of Barbara Schreibman, former counsel for Brican, which was submitted by NCMIC, Ms. Schreibman contacted Mr. Scott in October of 2009 regarding potential information Mr. Scott had related to dealings between Brican and NCMIC (DE # 308-1). Specifically, Ms. Schreibman states that Mr. Scott informed her that he had "no recollection or knowledge whatsoever of the Brican account, the Advertising Agreement Addendum or his 2006 letter to Brican." (DE # 308-1). NCMIC contends that Ms. Schreibman's Affidavit therefore demonstrates that Mr. Scott did not alter his deposition testimony after meeting with Mr. Cole, but rather made statements at that deposition that were consistent with statements he made previously to Ms. Schreibman.
Finally, Mr. Scott testified that the only thing that he did in preparation for his deposition was to meet with the attorneys and Greg Cole for approximately an hour (DE # 294-1 at 7). Thus, it appears that any "coaching" that Mr. Cole allegedly engaged in would have occurred in the presence of NCMIC Counsel. If the Plaintiffs had sincerely believed that such improprieties had been witnessed and, in essence, condoned by NCMIC counsel, then Counsel for the Plaintiffs was obligated to, under the Florida Rules of Professional Conduct to report such conduct.
Accordingly, based upon the record before the court, and the facts of this case, the undersigned concludes that the Plaintiffs have failed to establish that Mr. Cole engaged in witness tampering and/or solicited perjury from Mr. Scott at his deposition. As such, the Plaintiffs' request for the imposition of sanctions on this ground is denied.
As stated above, the Plaintiffs contend that NCMIC's conduct in this case warrants the imposition of dispositive sanctions. In support of this contention, in addition to filing the instant Motion for Sanctions for alleged witness tampering, the Plaintiffs have also filed two other Motions for Sanctions related to NCMIC's purported failure to produce an adequate 30(b)(6) deponent (DE # 284) and for spoliation of evidence related to the alleged destruction of a paper file (DE # 290).
As stated above, a court may impose sanctions for litigation misconduct under its inherent power which derives from the court's need "to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases." This power, however, "must be exercised with restraint and discretion." Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). Therefore, generally, the severe sanction of a dismissal or default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court's orders. In re Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1306 (11th Cir.2006) (internal citation and quotation omitted). When exercising its inherent power, the court must comply with due process in determining bad faith and affixing sanctions. Chambers, 501 U.S. at 50, 111 S.Ct. 2123. The sanction of dismissal requires the clear and convincing evidence that a litigant engaged in bad-faith discovery abuses. Shepherd v. American Broadcasting Companies, 62 F.3d 1469, 1472-73 (D.C.Cir.1995); Qantum Commc'ns. Corp. v. Star Broad., Inc., 473 F.Supp.2d 1249, 1277 (S.D.Fla.2007) (finding by clear and convincing evidence that litigant engaged in abusive conduct and that no sanction less than default judgment and fees would sufficiently deter and punish improper conduct).
In Quiroz, for example, the Court determined that the combination of Plaintiff Quiroz's attempt to tamper with witnesses by providing them a portion of his court award in exchange of favorable testimony, his perjured affidavit and his dishonest testimony at the evidentiary hearing clearly and convincingly established his bad faith litigation conduct which warranted the imposition of dispositive sanctions in the form of dismissal of his action.
In this case, under the totality of the facts, the undersigned concludes that the imposition of sanctions in the form of striking Defendant NCMIC's pleadings, is not warranted. Indeed, although Plaintiffs filed three separate Motions for Sanctions, two of the three, including the Motion for destruction of evidence and the instant Motion for witness tampering were denied. The Motion for Sanctions related to the failure to produce an adequate 30(b)(6) was only granted, in part, with the Plaintiffs being permitted to conduct a follow up deposition. To the extent that the Plaintiffs have referred to other acts by Mr. Cole in support of their request, the undersigned has not considered those accusations, as they have not been presented to the Court for purposes of requesting relief as to those specific acts, but merely are mentioned by the Plaintiffs to demonstrate
The undersigned therefore determines that the Plaintiffs have not met their burden of demonstrating that NCMIC engaged in witness tampering or destruction of evidence and thus concludes that any other "discovery abuses" by NCMIC are not significant to warrant the imposition of dispositive sanctions. Accordingly, the undersigned recommends that, to the extent the Plaintiffs request that the NCMIC's pleadings be stricken and judgment be entered in favor of the Plaintiffs, the Request be denied.
Therefore, for the reasons stated above, it is hereby
As to this Recommendation, the parties will have fourteen days from the date of service within which to file written objections, if any, for consideration by the Honorable Patricia A. Seitz, United States District Judge. Failure to file objections timely shall bar the parties from attacking on appeal any factual findings contained herein. LoConte v. Dugger, 847 F.2d 745 (11th Cir.1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
Id. at 106. The Court therefore applies the preponderance of evidence standard to the allegations of witness tampering so far as the Plaintiffs seek non-dispositive sanctions for the alleged violations, and apply the more exacting clear and convincing standard to the request for dispositive sanctions.
