Sanctions Flashcards
Braden v Downey:
o If you deny a request for admission and the other side later proves it, then you can get a sanction for the costs to prove the issue.
o Even if you have discovered information from another party through depositions, you can still inquire as to the same information via interrogatories.
o The rules say orders of sanctions are reviewable on appeal. This means that the appeal is likely and adequate remedy at law. BUT the situation in this case is slightly different b/c 10k is extremely high, and pmt of the 10k may discourage the party from pursuing the case, so it may have an effect on the outcome. (the sanction amount is paid before appeal takes place). The policy is that sanctions should not affect the merits of the case. This is a fact-intensive inquiry. There would be no problem if the timing were different (e.g. pmt would only happen after the final judgment) or if the sanctioned party was super rich (e.g. exxon mobile).
o There are several types of contempt: punishment, inducement to produce evidence, etc.
Sanctions for Failure to timely respond or supplement
• An automatic sanction is imposed for failure to respond to requests for admissions (failure is an admission). An automatic sanction could also be an exclusion of certain evidence, such as when a failure to disclose an expert witness.
• Jackson v Maul
• Wheeler v. Green
o How soon should these things be supplemented? Within a reasonable time when you find out.
215.1 Motion for Sanctions or Order Compelling Discovery.
A party, upon reasonable notice to other parties and all other persons affected thereby, may apply for sanctions or an order compelling discovery in the Following Cards
Appropriate court.
On matters relating to a deposition, an application for an order to a party may be made to the court in which the action is pending, or to any district court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken. As to all other discovery matters, an application for an order will be made to the court in which the action is pending.
Motion.
) If a party or other deponent which is a corporation or other entity fails to make a designation under Rules 199.2(b)(1) or 200.1(b); or
(2) if a party, or other deponent, or a person designated to testify on behalf of a party or other deponent fails:
(A) to appear before the officer who is to take his deposition, after being served with a proper notice; or
(B) to answer a question propounded or submitted upon oral examination or upon written questions; or
if a party fails:
(A) to serve answers or objections to interrogatories submitted under Rule 197, after proper service of the interrogatories; or
(B) to answer an interrogatory submitted under Rule 197; or
(C) to serve a written response to a request for inspection submitted under Rule 196, after proper service of the request; or
(D) to respond that discovery will be permitted as requested or fails to permit discovery as requested in response to a request for inspection submitted under Rule 196; the discovering party may move for an order compelling a designation, an appearance, an answer or answers, or inspection or production in accordance with the request, or apply
to the court in which the action is pending for the imposition of any sanction authorized by Rule 215.2(b) without the necessity of first having obtained a court order compelling such discovery.
When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion pursuant to Rule 192.6.
Evasive or incomplete answer
For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
Disposition of motion to compel: award of expenses.
If the motion is granted, the court shall, after opportunity for hearing, require the party at fault (or his LR, or both) to pay the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified. Such an order shall be subject to review on appeal from the final judgment.
If the motion is denied, the court may, after opportunity for hearing, require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees.
NOTHING ON THIS SIDE DAMNIT
Sanctions by court in district where deposition is taken
If a deponent fails to appear or to be sworn or to answer a question after being directed to do so by a district court in the district in which the deposition is being taken, the failure may be considered a contempt of that court.
If a party or an officer, director, or managing agent of a party or a person designated under Rules 199.2(b)(1) or 200.1(b) to testify on behalf of a party fails to comply with proper discovery requests, the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just, including:
(1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party;
(2) an order charging all or any portion of the expenses of discovery or court costs or both against the disobedient party or the LR advising him;
(3) an order that the matters not responded to shall be taken to be established for the purposes of the action in;
(4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party;
(6) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(7) In lieu of any of the foregoing orders or in addition thereto, the court can require the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure. Such an order shall be subject to review on appeal from the final judgment.
Sanction against nonparty for violation of Rules 196.7 or 205.3.
If a nonparty fails to comply with an order under Rules 196.7 or 205.3, the court which made the order may treat the failure to obey as contempt of court.
Abuse of Discovery Process in Seeking, Making, or Resisting Discovery.
If the court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purposes of delay, then the court in which the action is pending may, after notice and hearing, impose any appropriate sanction authorized [above]. Such order of sanction shall be subject to review on appeal from the final judgment.
“Just” Sanctions
• 2 Standards to Determine Whether a Sanction is Just
A. A “direct relationship” must exist between the offensive conduct and the sanction imposed
➢ The sanction must be directed against the abuse
➢ The sanction must be directed toward remedying the prejudice caused to the innocent party
➢ The tc must also attempt to determine whether the offensive conduct is attributable to counsel only, or a party, or both; and direct the sanctions accordingly.
B. Just sanctions must not be excessive
➢ The sanction must be no more severe than necessary to satisfy its legitimate purpose (compliance, punishment, deterrence)
➢ The ct should consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance.
Review of Sanctions Order
• The standard rule is that sanctions are only appealable after a final disposition of the case.
• Typically a sanction for attorneys fees to compel discovery would be merited, and could be ordered to be paid during the pendency of the suit. BUT excessively high sanctions (10k) or a sanction for community service by an attorney may not be “just,” & there may not be an adequate remedy by appeal because of the drastic effect on the case. (thus mandamus might be appropriate).
• When is mandamus available?
A. When severe monetary sanctions are ordered paid before the final judgment is rendered (e.g. 10k fine, due immediately)
B. When any severe sanction is imposed that has the effect of adjudicating the dispute (e.g. attorney ordered to do community service “immediately”)
• Standard of Review – Abuse of discretion
