Aerospace Law Committee Committee Perspectives hands remain clean during the litigation. E.g., Addressing Egregious Misconduct Mas v. Coca-Cola Co., 163 F.2d 505, 508 (4th Cir. 1947); Aris-Isotoner Gloves, Inc. v. Berkshire Fashions, Inc., 792 F.Supp. 969, 972 (S.D.N.Y. 1992), aff’d without opinion, 983 F.2d 1048 (2d The Perjuring Cir. 1992). As one trial court explained: “It would be strange if a court of equity had power— because of public policy for its own protec- tion—to throw out a case because it entered Plaintiff with unclean hands and yet would have no power to act if the unconscionable conduct occurred while the case was in court.” Ameri- by Jonathan M. Stern can Ins. Co. v. Lucas, 38 F.Supp. 896, 921 (W.D. Mo. 1940) (“It would be as fantastic as to think that a householder could eject one who en- tered his house to steal the family silverware but could not eject a guest who entered inno- cently but whom he caught later stealing the Without looking at the rulebook, can you absence of express prohibitions of the plain- silverware.”), aff’d sub nom., American Ins. Co. state which Rule or Rules in the Federal Rules tiff’s misconduct in the rules. v. Scheufler, 129 F.2d 143 (8th Cir. 1942). of Civil Procedure prohibit litigants from com- This article addresses the role that the “un- Unclean hands has been invoked to dis- mitting perjury or fabricating evidence? If you clean hands” and “fraud on the court” doc- miss claims or defenses of litigants who have cannot, no need to worry—the question is a trines, supported by Rules 11, 16, 26, 37, and used underhanded means to advance their trick. None of the Federal Rules prohibits such 41 of the Federal Rules of Civil Procedure (or cause. So, for example, in Mas v. Coca-Cola conduct, at least not directly. Surprisingly, the their state counterparts) and the inherent pow- Co., a plaintiff used forged documents and words “perjury,” “perjure,” and “perjured” can- ers of a trial court, may play in disposing of a perjured testimony in a failed attempt to es- not be found anywhere in the text of the Federal perjuring plaintiff’s claims without trial. tablish priority of invention before the Patent Rules of Civil Procedure. Likewise, “fabricate” Office. When subsequently he sued for a dec- appears nowhere in the Rules. The word “false” “Unclean Hands” laration of entitlement to a design patent on a appears only once, in the heading (but not the The genesis of the case law that puts this arrow beverage bottle, his case was dismissed for his text) of Rule 37(c). in the defense lawyer’s quiver is “unclean hands,” coming into court with unclean hands. 163 Given the absence of these words from the an equitable doctrine that courts apply for F.2d at 507. Rules, it is no wonder that defense counsel often their own protection. It is “a self-imposed ordi- The unclean hands doctrine, flexible in ap- are unaware of a potent weapon in their arsenal nance that closes the doors of a court of equity plication, permits a court to exercise broad to combat the plaintiff who commits or sub- to one tainted with inequitableness or bad discretion to deny relief to a litigant who has orns perjury, fabricates evidence, or both. De- faith relative to the matter in which he seeks acted in an unconscionable way that “has im- fense counsel can, in appropriate cases, obtain relief, however improper may have been the mediate and necessary relation to the matter dismissal and thereby avoid trial. They can do behavior of the defendant.” Precision Instru- that he seeks in respect of the matter in litiga- so despite their inability to satisfy the stand- ment Mfg. Co. v. Automotive Maintenance Mach. tion.” Keystone Driller Co. v. Gen. Excavator Co., ards for summary judgment and despite the Co., 324 U.S. 806, 814–15 (1945). 290 U.S. 240, 245 (1933); accord Precision In- The following two equitable maxims un- strument, 324 U.S. at 814–15. While the mis- derlie the doctrine: (1) he who seeks equity conduct must be closely related to the subject must do equity; and (2) he who comes into of the claim, it need not rise to the level of fraud equity must come with clean hands. See, e.g., or illegal conduct. John Norton Pomeroy, Eq- 27A Am. Jur. 2d, Equity §§119, 126 (1996). If uity Jurisprudence 397, 404 (5th ed. 1941) not already encompassed by the first maxim, (“It is not alone fraud or illegality which will the courts have added the requirement that prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose very founda- Jonathan M. Stern is Chair of the DRI Aerospace Law Committee. He practices tion is good conscience.”); see also Mas, 163 aerospace and insurance coverage law with Schnader Harrison Segal & Lewis F.2d at 507–8. Moreover, the doctrine does not LLP, where he is resident in the Firm’s Washington, DC, office. Mr. Stern, who call for a balancing of the misconduct on both holds FAA-issued commercial pilot, control tower operator, and ground instruc- sides of the case. Rather, the conduct of the tor certificates, was formerly an air traffic controller at Washington National party seeking relief and its effect on the judicial Airport and a flight instructor. process are the sole considerations. E.g., Alcatel August 2004 © 2004 DRI. All rights reserved. 51 Committee Perspectives Aerospace Law Committee USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 794 Shawmut Bank. Rockdale subsequently sued As the First Circuit stated in Aoude v. Mobil n.92 (5th Cir. 1999); Mas, 163 F.2d at 510–11; the bank for fraud and negligence for its failure Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989): United Cities Gas Co. v. Brock Exploration Co., to disclose environmental contamination of the “Because corrupt intent knows no stylistic 995 F.Supp. 1284, 1296 n.11 (D. Kan. 1998). property. To bolster the damages case, Rock- boundaries, fraud on the court can take many Traditionally an equitable defense, the un- dale’s president created a letter that purported forms.” Some of the more creative or interesting clean hands doctrine has at times since the to be a third-party offer to lease the subject examples of conduct that triggered the unclean merger of law and equity been applied to cases property for a specified monthly amount. The hands and fraud on the court doctrines are at law. E.g., Tempo Music, Inc. v. Myers, 407 F.2d letter was referenced in an interrogatory re- the following: 503, 507 n.8 (4th Cir. 1969); Buchanan Home & sponse prepared by the plaintiffs, and the Auto Supply Co. v. Firestone Tire & Rubber Co., president testified in deposition to the letter’s Suborning perjury 544 F.Supp. 242, 245 (D.S.C. 1981); Cummings v. authenticity. Only after the nominal author Plaintiffs in a defamation case involving re- Wayne County, 533 N.W.2d 13, 14 (Mich. Ct. testified that the letter was a fake was the forg- ports that they stole two dogs were found to App. 1995). But see Shirvanian v. Defrates, No. ery admitted. have paid a witness to provide a false alibi for 14-02-00447-CV, 2004 Tex. App. LEXIS 182 the day of the dognapping and to testify falsely (Jan. 8, 2004) (rejecting application of unclean The conduct of the party that he heard a defendant making defamatory hands to action at law). As a practical matter, statements about one of the plaintiffs on the there may be little need to apply the doctrine in seeking relief and its effect radio and, as a result, had a lower opinion of law cases because of the parallel development her. Schultz v. Sykes, 638 N.W.2d 604 (Wis. of the “fraud on the court” doctrine. on the judicial process are App. 2001). “Fraud on the Court” the sole considerations. Suppressing evidence The Supreme Court has described fraud on the Plaintiff was found to have suppressed an im- court as “a wrong against the institutions set up In affirming the dismissal, the appellate portant medical report in an Americans With to protect and safeguard the public.” Hazel- court relied on a trial court’s inherent power to Disabilities Act case. Maynard v. Nygren, 332 Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. dismiss a case when a litigant commits a fraud F.3d 462 (7th Cir. 2003). 238, 246 (1944). “Fraud on the court” is used as on the court: shorthand to describe a variety of improper A “fraud on the court” occurs where it can Improperly accessing an acts that may lead to sanctions under the rules be demonstrated, clearly and convincingly, opponent’s work product of civil procedure or pursuant to a court’s in- that a party has sentiently set in motion A plaintiff in a slip-and-fall case who was an herent powers in managing its docket. E.g., some unconscionable scheme calculated employee of the insurance company that ad- Stanley Shenker & Assocs. v. World Wrestling to interfere with the judicial system’s abil- ministered claims against the supermarket in Fed’n. Entm’t, 48 Conn.Supp. 357 (Conn. Super. ity impartially to adjudicate a matter by which the fall occurred accessed the insurer’s Ct. 2003). Hazel upheld the vacation by the improperly influencing the trier or unfairly computerized file, which contained defense Third Circuit of a judgment for patent infringe- hampering the presentation of the oppos- counsel’s work product.