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  • Discovery Tactics

Banks Failure To Produce Equals Sanctions!!!
| February 17, 2010

We all know the banks are hiding the truth and we are trying to uncover it.  Proper ESI discovery requests will open Pandora’s Box.  With the proper strategy in place and tactically executed, ESI discovery requests CAN and WILL set the stage for a damaging blow to the banks.  Here are some great Florida Circuit Court points with supported case-law to remember when dealing with the banks.  Let this be the premise for how you proceed either offensively or defensively.

“[A] trial court has the inherent power to impose sanctions on a party who destroys evidence or perpetrates a fraud on the court.” Babe Elias Builders, Inc. v. Pernick, 765 So. 2d 119, 119 (Fla. 3d DCA 2000); see also Amato v. Intindola, 854 So. 2d 812, 815 (Fla. 4th DCA 2003); and Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998).

“The requisite 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.” McKnight v. Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005) (internal quotations omitted).

Where a trial court determines that a party’s conduct “amounted to a scheme calculated to interfere with the court’s ability to impartially adjudicate [the] claim,” a sanction as severe as dismissal or default judgment is appropriate.  Savino v. Fla. Drive In Theatre Mgmt., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997); see also Bob Montgomery Real Estate v. Djokic, 858 So. 2d 371, 375 (Fla. 4th DCA 2003) (“dismissal is properly utilized where a party knowingly misleads the other party, thereby interfering with the other side’s ability to defend (or prosecute) by a knowing deception intended to prevent the essential discovery.”).

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