Stranger than Fiction

Submitted by patentadmin on Fri, 08/27/2010 - 15:52

The courtroom behavior of some people is just unbelievable. They do things you’d only expect to see on television – in a sitcom. (Sky Development, Inc. v. Vista View Development, Inc. et al.)

Sky sued Vista View, alleging misrepresentation with respect to the mix of units in buildings sold to Sky. During a deposition of Sky’s manager, the Sky CFO passed a note to the witness, with instructions on how to testify. “Don’t worry about pleasing him. Just say no.” The magistrate judge attending the deposition observed this and advised the CFO that communications with a testifying witness were not permitted.

Fast forward to trial. The CFO is now on the witness stand, testifying as to whether Sky had received a certain document. During this testimony, Sky’s sole shareholder sent two text messages to the witness, including, “[w]e maybe got this document after September 7 when the bank discovered the problem.”

Upon discovering the text messages, the Court declared a mistrial and invited the defendants to make a motion for a dismissal of the case. Being able to take a hint, they did so. The Court granted this motion, dismissing the case “with prejudice” (judicialspeak for “it’s final – you can’t refile it”) and awarding the defendants its attorneys’ fees.

Sky, apparently possessed of boundless chutzpah, appealed, arguing that the trial judge had abused his discretion. Not so, said the appellate court, which noted that the CFO committed this transgression after having been previously warned. “[D]iscretion is abused only where no reasonable man would take the view adopted by the trial court.” “There was ample evidence for the trial court to conclude that … an unconscionable scheme was underway … This is not a case where the dismissal was unreasonably harsh.”

THE LESSON TO BE LEARNED: When you’re at a deposition or a trial, don’t assume you can do anything undetected; and don’t do anything stupid.

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