Written by Megan E. Cook, Esq.
Edited by Bill Pfund, Esq.
Whether viewed from a defense or plaintiff standpoint, after a party has provided false discovery information, the opposing party’s response should be to file a Motion for Sanctions against the party who provided the false information. Virginia Courts have awarded sanctions against the violating party for false interrogatory answers and false deposition testimony numerous times.
The case of Doe v. Va. Wesleyan College provides a succinct analysis of how to properly discuss one’s arguments supporting a Motion for Sanctions. 93 Va. Cir. 215 (2016). The core arguments begin with an analysis of Virginia Code § 8.01-271.1 and Virginia Supreme Court Rule 4:12.
The pertinent part of Section 8.01-271.1 of the Code of Virginia states:
“Every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name…A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address. The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper [and] (ii) to the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact…”
The court in Doe interprets this as saying that sanctions under this statute are only available against the attorney. 93 Va. Cir. at 226. Otherwise, as the statute discusses, sanctions can be assessed against a pro se litigant if unrepresented. Id.
Sanctions based on Rule 4:12 of the Rules of the Supreme Court of Virginia are applicable in circumstances where a discovery order is issued by the court compelling the nonmoving party to answer; and, the nonmoving party violates the discovery order. Id. – In other words, if a plaintiff fails to answer discovery or provide an adequate response to discovery, upon motion by the defendant, the court may order the plaintiff to provide clear and/or complete answer(s). If the plaintiff fails to do so according to the details within the order, a defendant should then move for sanctions under Rule 4:12.
However, an evasive or incomplete interrogatory answer “is to be treated as a failure to answer,” and therefore, may constitute an exception to the requirement that a discovery order first be entered and subsequently violated prior to making a motion for sanctions under Rule 4:12. Id. Under this exception, the court shall require the violating party to pay reasonable expenses, including attorney’s fees, caused by such violation unless the court finds the violation was substantially justified. Id. One should take note that a court will not find that a false answer to an interrogatory falls within the exception of an evasive or incomplete interrogatory answer. Id. at 227.
If applicable, one should proceed under § 8.01-271.1, Rule 4:12, and the court’s inherent power to grant sanctions against the violating party. However, there are circumstances in which Virginia courts have held that § 8.01-271.1 and Rule 4:12 do not apply, such as in the cases of Doe and French v. Painter. 93 Va. Cir. 215 (2016); 86 Va. Cir. 344 (2013).
In Doe, the court struck down arguments for sanctions against an attorney under § 8.01-271.1 and Rule 4:12. 93 Va. Cir. at 226. The court reasoned that sanctions were not warranted under § 8.01-271.1 because the attorney could not be held responsible for the plaintiff’s dishonesty without prior knowledge of his client’s dishonesty. Id. Similarly, sanctions under Rule 4:12 were not applicable because there was not a discovery order compelling the plaintiff to provide information, and her false answer was not evasive nor incomplete so as to allow for an award of reasonable expenses. Id. at 227. However, the court did award sanctions under its inherent power to do so due to a finding of fraud on the court. Id. at 227-232. The French court cited similar rationale in its decision. See French, 86 Va. Cir. at 355-361.
A court has inherent power to award sanctions against a party based on fraud. Although fraud on the court has not been defined by Virginia appellate courts, many Virginia courts have adopted the definition used by the U.S. District Court for the Eastern District of Virginia:
“A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.”
SunTrust Mortgage, Inc. v. AIG United Guar. Corp., 2011 U.S. Dist. Lexis 33118 at *41 (E.D. Va. 2011). This rationale was applied in Doe and French in finding that a party’s untruthful answers to interrogatories or false deposition testimony constitutes a fraud on the court.
Virginia courts generally claim that granting complete dismissal of a plaintiff’s claim is too harsh of a punishment for this type of violation. Instead, the penalties can include notifying the jury of the violating party’s falsity thereby allowing the jury to form its own opinion as to that party’s credibility at trial (Doe, 93 Va. Cir. 215 (2016)); granting motion for summary judgment on a claim (French, 86 Va. Cir. 344 (2013)); payment of a percentage of any verdict obtained at trial to the movant (Ellerbe v. Lowe’s Home Ctr., 47 Va. Cir. 464 (1998); or, monetary sanction award (Mayfield v. Southern Ry. Co., 31 Va. Cir. 229 (1993)).