Refusing to respond to discovery request. Failing to produce responsive documents. Answering questions on behalf of a witness at a deposition. Failing to participate in a pretrial scheduling conference. As every litigator knows, these tactics are all too common in the world of discovery today. If you and your client are on the receiving end of this behavior, it can be frustrating, time-consuming, and expensive.
While there may be little you can do to address your frustration, you may be able to make your client financially whole for the opponent’s abusive, and costly, tactics. Several federal Rules of Civil Procedure allow for the recovery of attorneys’ fees as a sanction for an adversary’s abuse of the discovery process. If an opponent engages in these types of behavior, consider a motion for sanctions under the following rules:
Rule 16. A party may be sanctioned for failure to appear at a scheduling or pretrial conference even if the failure to appear was unintentional. Sanctions may also be awarded for failure to prepare or participate in good faith in a pretrial conference. Fee awards are mandatory for a Rule 16 violation, unless noncompliance was substantially justified or an award of fees would otherwise be unjust.
Rule 26. Rule 26 applies to initial disclosures and written discovery requests, responses, and objections. Courts have awarded fees pursuant to Rule 26 for a party’s failure to sign responses to requests for production and interrogatories, to produce an obviously applicable insurance policy in its initial disclosures, to disclose witnesses until after the close of discovery, and to provide a deposition date.
Rule 30. Rule 30(d) provides sanctions for certain misconduct during depositions. The court may impose “appropriate sanctions” against a person who “impedes, delays or frustrates” the examination of a witness.
Rule 37. An attorneys’ fees award may be granted if the other party fails to: (a) obey a discovery order; (b) provide information or identify a witness as required under Rule 26; (c) attend its own deposition; (d) serve answers to interrogatories; (e) respond to requests for inspection; or (f) participate in creating a joint discovery plan.
The Federal Rules of Civil Procedure are designed to facilitate an efficient and effective discovery process. When necessary, a well-grounded motion for sanctions may compensate your client for discovery expenses and keep the process on track.
For further information, we invite you to download the following Legal Insights White Paper:
Turning the Tables: Effective Strategies for Shifting the Burden of Attorneys’ Fees
Further Reading and References:
Fed. R. Civ. P. 16(f)(2).
CLM Partners LLC v. Fiesta Palms, LLC, 2013 WL 6388760, at *2 (D. Nev. Dec. 5, 2013).
Fed. R. Civ. P. 16(f)(1); Howe v. Cobb Mechanical Contractors, Inc., 2010 WL 1413171, at *3 (D. Colo. Apr. 2, 2010).
Washington v. City of Detroit, 2007 WL 603379, at *2 (E.D. Mich. Feb. 22, 2007).
Sakakibara v. Spectrum Gaming Group, LLC, 2010 WL 2947381, at *3 (D. Nev. July 22, 2010).
Kwon v. Singapore Airlines, 2003 WL 25686535, at *2 (N.D. Cal. Nov. 7, 2015).
Wake v. National R.R. Passenger Corp., 2013 WL 1316431 (D. Md. Mar. 27, 2013).
Fed. R. Civ. P. 30(d)(2).
Fed. R. Civ. P. 37(a)(3); see also JSC Foreign Economic Assoc. v. Int’l Development and Trade Services, Inc., 386 F. Supp. 2d 461 (S.D.N.Y. 2005) (party failed to produce thousands of pages of documents and withheld non-privileged documents under a blanket assertion of privilege); RBC Bank (USA) v. Epps, 2012 WL 3637834 (D. S.C. Aug. 22, 2012) (party failed to respond to discovery requests, motion to compel, and failed to produce documents in violation of court order).