Refuting Fake News

Public distrust in institutions is an inescapable reality in today’s news. A 2018 New York Times article discussed this topic within the context of the medical profession and noted public trust in medical providers has decreased nearly 40 percent in the last 40 years. And, last year, the Pew Research Center decided to ramp up research on trust, facts, and democracy, noting, “Faith in expertise and institutions has declined, cynicism has risen, and citizens are becoming their own information curators.” Thus, it comes as no surprise phrases like “fake news,” “alternative facts,” and “post-truth,” are commonplace today.

Attorneys for plaintiffs often seek to exploit the public’s cynicism and distrust of institutions to prove their cases and increase jury awards. One example of this tactic is to argue or infer that the defendant altered or falsified documents that are contradictory to the plaintiff’s version of the facts in the case. In medical malpractice claims, these tactics are used when the provider’s medical records do not match the plaintiff’s theory of the case. But any type of claim may be subject to similar accusations, such as allegations of altered or falsified inspection reports, insurance claim file documents, and truck driver logs.

The typical initial reaction of claims professionals or defense counsel may be to shrug off these seemingly outlandish allegations, but these tactics should be confronted head-on. If left unchallenged, a jury could be allowed to consider these arguments at trial, which could increase the potential risk for a large verdict if a jury accepts the plaintiff’s argument because of a predisposed distrust of a corporate or institutional defendant.

The best way to counter such tactics is to prepare as soon as possible after the loss occurs. It is important to ensure a “litigation hold” is in place, which will direct custodians of records to preserve potentially relevant documents and electronically stored information. Counsel should also gather and secure relevant documents maintained by the defendant to ensure proper preservation for anticipated litigation. In some instances, it may be important to maintain records in a password-protected manner to prevent inadvertent deletion or alteration of documents. These steps will help minimize the chance an employee could inadvertently or intentionally delete or alter a document after the date of loss.

During litigation, plaintiff’s counsel may attempt to elicit testimony or argue certain records are altered or falsified because the defendant’s records do not match the plaintiff’s version or theory of the case. To counter this tactic, steps should be taken to verify the authenticity of the records at issue. In the age of metadata, technology can track or verify any changes to an electronic document. Testimony from document custodians can also demonstrate the authenticity and integrity of the document. Additionally, defense counsel can use written discovery to obtain admissions regarding the authenticity of records and request interrogatory responses describing any evidence supporting claims of alteration or falsification of records at issue.

Thus, defense counsel should ensure the plaintiff’s allegations of document tampering are unsupported. While circumstantial evidence may be allowed to prove a claim, it must be based on a reasonable inference from the facts, rather than speculation or an inference based on another inference. Discovery, therefore, can be helpful to demonstrate plaintiff’s alteration or falsification theories are unsupported and should not be considered by the court or jury in deciding the outcome of the claim.

Even if there is no reason to believe the records are altered or falsified, tactics that rely on the distrust of institutions may be used at the summary judgment phase. For example, in Davis v. Madison County, a prison medical care case from 2018, the plaintiff argued that the medical records did not reflect the true course of treatment that the inmate received. Based on this premise, the plaintiff argued that the defendants were not entitled to summary judgment because the medical records were untrustworthy, and the jury would be free to discredit the medical records relied upon by the defendants.

There was no real evidence to support the plaintiff’s argument. The district court granted the defendants’ motions for summary judgment because the plaintiff failed to present any evidence to contradict the defendants’ testimony and documentary evidence. Essentially, the plaintiff failed to present anything more than an argument based on speculation and conjecture, which the court rightfully rejected.

The Davis case is a great example of how defense counsel can utilize the law to defeat these arguments at the summary judgment stage. While it is true legitimate credibility determinations are inappropriate at the summary judgment stage, Fed. R. Civ. P. 56 does not require a court to disregard as potentially false every piece of evidence a defendant submits in support of a motion for summary judgment. To defeat summary judgment by disputing the credibility of the defendant’s evidence, the plaintiff must present specific, affirmative evidence of its falsity.

Conclusory arguments discrediting evidence are not considered a sufficient basis for drawing a contrary conclusion (see Anderson v. Liberty Lobby Inc.). Instead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Thus, when challenges to credibility of the evidence are all that a plaintiff relies on, and he has shown no independent facts to support his claims, summary judgment in favor of the defendant is appropriate.

Even if the claim survives summary judgment, defense counsel can utilize motions in limine to prevent a plaintiff from arguing the records were altered or falsified. The purpose of an in limine motion is to aid the trial process by enabling the court to rule in advance of trial on the relevance of certain forecasted evidence without lengthy argument at, or interruption during, trial, and, importantly, to avoid the introduction of damaging evidence that may irretrievably affect the fairness of the trial. Generally, evidence that is unsubstantiated speculation is inadmissible and is proper grounds for a motion in limine.

Courts are generally reluctant to allow a plaintiff to argue a defendant’s documents were altered, falsified, or should be discredited without supporting evidence or legitimate inferences. However, plaintiffs will continue to use these tactics when their version of the events does not match the defendant’s records because these arguments may resonate with a jury in the “fake news” era. Claims professionals and defense counsel should discuss these issues as early as possible to create a plan of action to thwart these tactics.