In a recent decision, the U.S. Court of Appeals for the Seventh Circuit reaffirmed that “witness tampering is among the most grave abuses of the judicial process, and as such it warrants a substantial sanction,” and addressed counsel’s duty of candor to the tribunal where evidence of witness tampering arises. Ramirez v. T&H Lemont, Inc., 845 F.3d 772 (7th Cir. 2016).
In Ramirez, where the plaintiff sued his employer for discrimination, the Seventh Circuit affirmed the district court’s dismissal with prejudice of the action because the plaintiff paid witnesses to testify in his favor at deposition. While the district court did not specify whether it issued the dismissal sanction under Rule 37 of the Federal Rules of Civil Procedure or the court’s inherent authority, the Seventh Circuit found that either would have supported the district court’s decision.
The Seventh Circuit also addressed the proper standard that district courts must apply in issuing a dismissal sanction for misconduct. Prior Seventh Circuit precedent required that the willfulness, bad faith, or fault of the accused party be supported by clear and convincing evidence to warrant a dismissal of the case. Ramirez, however, holds that in civil cases, a district court's decision to sanction misconduct by dismissing the action or entering a default judgment need only be established by a preponderance of the evidence. This burden, the court noted, is consistent with the Supreme Court's presumption in favor of the less onerous preponderance-of-evidence standard in federal civil cases.
However, a district court may require that a dismissal sanction for a plaintiff’s misconduct be supported by clear and convincing evidence—rather than by a preponderance of the evidence—if the plaintiff seeks equitable relief or the interests implicated by the suit’s dismissal are sufficiently important. The Seventh Circuit noted that in Ramirez, the plaintiff sought only monetary damages. And while the court acknowledged that a plaintiff’s opportunity to vindicate his rights in a Title VII discrimination case is highly important, “the loss of the opportunity to vindicate those rights in a civil suit against one's employer is not of the same constitutional magnitude as the liberty interests at stake in proceedings involving the termination of parental rights or involuntary commitment to an institution for psychiatric care, for example.”