Doctored Evidence Leads to Rare Sanctions Against Plaintiff

• Date: 01 April 2024

Published i n Litigation New s Volume 49, Numbe r 3, Spring 2024 . © 2024 by the Ameri can Bar Asso ciation. Rep roduced with pe rmission. A ll rights rese rved. This inf ormation or any p ortion there of

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trial court dismissed a lawsuit

and awarded almost half

a million dollars in fees

and costs to the defen-

dants after the plainti

attached fabricated evidence to its

complaint. The court found that this

outcome was justif‌ied based on the

plainti’s repeated attempts to mis-

lead the court and the parties, and the

plainti’s failure to take ownership of

its misconduct. ABA Litigation Section

leaders warn litigators to take cli-

ent misconduct seriously, understand

their own ethical obligations, and take

prompt corrective action to avoid harsh

sanctions.

In For Life Products, LLC v. Virox

Technologies, Inc., the plainti sued

multiple defendants for trademark

infringement and unfair competition.

In response to a counterclaim by one

of the defendants, the plainti f‌iled an

amended complaint, attaching various

exhibits in support of the claim that it

had continuously sold certain products

since 2016. The exhibits included cop-

ies of the plainti’s product catalogs

from 2016 through 2020 and an image

from Amazon.com, all of which pur-

ported to show that the plainti mar-

keted and sold the disputed products

prior to the defendants securing own-

ership of their federal trademark regis-

trations for similar products.

Upon receipt of the plainti’s new

f‌iling, the defendants hired a foren-

sic photographic expert to review

the exhibits attached to the plain-

ti’s amended complaint. The expert

reported that the plainti had altered

nearly 30 of the product catalog

images, including replacement of

product labels that did not match the

ref‌lection of the label in the image.

The expert also concluded that the

Amazon.com image was an altered PDF

image of an Amazon.in (India) web-

site. Per the court, the expert noted

that “the Indian f‌lag had been erased

Doctored Evidence Leads to Rare

Sanctions Against Plaintif

from the search bar and the domain

sux was altered from ‘.in’ (India) to

‘.com’ (United States).” The defendants

moved for sanctions based on their

expert’s f‌indings and requested dis-

missal of the plainti’s claims, along

with an award of fees.

In the court’s analysis of the sanc-

tions request, it relied heavily on the

plainti’s culpability and bad faith.

The court noted that even when the

evidence pointed to bad faith, the

plainti did not take responsibility

for its actions but instead continued

to mislead the court. In defense of its

conduct, the plainti argued that it

mistakenly f‌iled the images and that it

suciently remedied the misconduct

when it asked to f‌ile another amended

complaint that removed the disputed

exhibits and reduced the number of

trademark infringement claims against

the defendants. The district court did

not f‌ind either argument credible.

Rather, the court found that the

plainti’s alteration of the images was

“not just purposeful but clearly tai-

lored to gain a litigation advantage.”

Moreover, the court concluded that the

plainti’s “no harm, no foul” argument

demonstrated a lack of respect for the

judicial system. In addition, the plain-

ti oered no suggestions to the court

for an alternative sanction and merely

oered up its belief that dismissal of the

case was too severe. The court held that

the gravity of the plainti’s conduct,

and its lack of explanation and owner-

ship of its actions, warranted dismissal

and assessment of fees and costs.

The defendants sought a total of

$706,177 in fees and costs. After reduc-

ing the requested hourly rate and hours

expended, the court awarded a lode-

star attorney fee f‌igure of $274,860.

The court then increased its award

by $91,620 (one-third of the attor-

ney fee amount) based solely on the

exceedingly rare and exceptional result

obtained by the defendants: dismissal

By Anna E. Malle n, Litigation News Contributing Editor

of the plainti’s claims. Finally, the

court awarded the full amount of the

defendants’ requested expert fees and

costs, for a total award of $405,112.33

to the defendants.

“It is rare to see this type of sanc-

tion,” remarks John M. Barkett, Miami,

FL, cochair of the Litigation Section’s

Ethics & Professionalism Committee.

“Never underestimate the jurisprudence

of anger,” he adds. When facing a situa-

tion like this, “correct the deceit imme-

diately, take actions to correct any

prejudice that has occurred, be humble,

apologize to the court, come totally

clean before the judge, and hope you

can keep the case alive by advocating

for a limitation on sanctions to an attor-

ney fee award only,” Barkett counsels.

While litigators need to recognize

the impact that client misconduct may

have on their case, ethical issues must

also be considered. “When lawyers are

confronted with client misconduct, they

need to consider not only their obliga-

tions to their client but also the obli-

gations placed on them by the Rules

of Professional Responsibility in their

states,” expounds Paula M. Bagger,

Boston, MA, cochair of the Section’s

Commercial & Business Litigation

Committee. In determining their ethical

responsibilities, “lawyers should give

special consideration to their state’s

ethical rules governing candor to the

tribunal as well as any exceptions to cli-

ent conf‌identiality,” advises Bagger.

RESOURCES

Brian A. Zem il, “Tug of War over Authority

for ESI Spoli ation Sanctions,” L itigation

News (Feb. 27, 2020).

Amber Davis-Tanner, “A Young Lawyer’s

Perspecti ve on Upcoming Change s to the

Federal Rul es of Civil Procedure,” Co m. &

Bus. Litig. (May 20, 2015).

SPRING 20 24 • VOL. 49 NO. 3

9 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WOR LD