TCPA

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7^th Circuit Court of Appeals

Case Name: Paldo Sign and Display Company v. Wagener Equities, Inc. et al

Case No.: 15-1267

Officials: WOOD,Chief Judge, and POSNER and ROVNER, Circuit Judges

Focus: TCPA

Respondent not directly responsible to dissemination of unauthorized and unsolicited fax transmissions. Court did not abuse discretion in admitted evidence related to character of key witness.

“The plaintiff’s argument that the evidence somehow violated Rule 608(b) misses the mark. Rule 608(b) prohibits only the use of extrinsic evidence, not lines of questioning. United States v. Dvorkin, 799 F.3d 867, 883 (7th Cir. 2015). And the rule expressly affords the trial judge broad discretion to allow such questioning regarding prior instances of conduct if they are probative of the character for truthfulness or untruthfulness of the witness. Fed. R. Evid. 608(b); United States v. Holt, 486 F.3d 997, 1002 (7th Cir. 2007). As the district court noted, no extrinsic evidence was allowed to prove specific instances of misconduct. For example, there was no testimony by a customer who purchased a diploma from Abraham’s business, or a company that was defrauded when it hired an employee on the basis of a fake diploma. The evidence was limited to Abraham’s own admission that she ran a “diploma mill,” a term that the district court acknowledged is not ambiguous. This evidence was not extrinsic and so Rule 608(b) does not bar it. See also United States v. Abair, 746 F.3d 260, 263-64 (7th Cir. 2014) (noting that Rule 608(b) bars extrinsic evidence of prior conduct to undermine a witness’s credibility but gives trial judges discretion to allow counsel to ask questions about that conduct on cross-examination, subject to Rule 403).Nor did the court abuse its discretion under Rule 403, which provides that the “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of … unfair prejudice.” The court carefully limited the testimony to one brief instance of Abraham’s prior conduct that the court found most probative of her character for untruthfulness, and concluded on balance that admission of this evidence was fair. Paldo Sign also misses the mark in complaining that the diploma mill testimony was used to undermine Wilson’s credibility. Wilson never testified and so his credibility was not at issue. In fact, it was Abraham who wrote the documents that were sent under Wilson’s name. Wilson’s only role was to engage in sale calls with Wagener, and Wagener was the only witness presented by Paldo Sign with personal knowledge of the content of those conversations. By relying so heavily on Abraham’s testimony regarding the deal between B2B and Wagener, Paldo Sign placed Abraham’s credibility, not Wilson’s, at the center of the case. The court did not abuse its discretion in admitting her own limited testimony that she previously ran a diploma mill, an admission that fairly called her credibility into question.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.