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SANCTIONS FOR DISCOVERY VIOLATIONS
© 1998 National Legal Research Group, Inc.
The problems are all too familiar. Interrogatories languish unanswered; document production requests are ignored; depositions are skipped; attorney's fees mount.
For many dependent spouses it is an uphill battle to force the other spouse to divulge much-needed information, yet full financial disclosure is critical for an informed settlement in equitable distribution proceedings. A Pennsylvania appellate court explained:
[T]he integrity of the adjudication process requires that all parties promptly and with thoroughness respond to discovery requests. While this principle is applicable to all litigation, it is especially meaningful in domestic relations matters. Domestic relations litigation frequently involves bitterness and hostility coupled with an unwillingness of the parties to cooperate. The parties who at one time had an intimate relationship with one another are now engaged in a fight and the litigation process is used as an arena to resolve personal problems. However, a court cannot proceed to a fair resolution of the matter without the necessary information. . . . Where a party's action disrupts the fair and orderly process of the divorce action, the court acts appropriately in imposing even severe sanctions if necessary to take control of the situation.Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super. Ct. 1998).
Part I of this article reviews general principles on the subject of discovery sanctions, and Part II reviews the major sanctions which are available for discovery violations.
I. General Principles
Procedure. What steps should be taken when the opposing party fails to comply with a discovery request or fails to provide discovery mandated by statute or court rule? Generally, the first step is to contact the opposing party's lawyer and attempt to resolve the problem without immediately moving for sanctions. In addition to being good practice, this step is required by court rule in some jurisdictions. See, e.g., In re Marriage of Lai, 152 Ill. App. 3d 11, 625 N.E.2d 330, 335 (1993).
Although the exact procedure depends on the particulars of state law and local custom, the next step is to file a motion to compel if the noncompliance persists. Once the court grants the motion and the opposing party fails to comply with the order, a motion for sanctions can be filed. The motion should identify all of the particular sanctions being sought so that the opposing party has sufficient notice and opportunity to be heard. See Zatzkis v. Zatzkis, 632 So. 2d 302 (La. Ct. App. 1993).
After notice and hearing, the trial court may sanction the opposing party. See Saddler v. Saddler, 556 So. 2d 344 (Miss. 1990) (plain error to grant default judgment for failure to provide requested discovery where husband was not summonsed to hearing). But see Hein v. Hein, 717 A.2d 1053 (Pa. Super. Ct. 1998) (notice and hearing not a necessary prerequisite for imposition of discovery sanctions).
"Willful" Noncompliance. As a general rule, the noncompliance must be willful, and not inadvertent or unintentional, in order to impose sanctions. See In re Marriage of Economou, 224 Cal. App. 3d 1466, 274 Cal. Rptr. 473 (1990).
Although a complete failure to respond is the clearest case of willfulness, incomplete or evasive answers can likewise be considered willful violation where it is apparent that the responding spouse simply intends to frustrate discovery. See, e.g., Giesler v. Giesler, 731 S.W.2d 33, 35 (Mo. Ct. App. 1987) (answers that husband finally filed were, "at best, incomplete and evasive"); Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500 (1988) (approving sanctions against husband who claimed not to know how many shares of corporation he owned or location of corporate books).
On the other hand, the court may not drastically penalize a spouse who makes a good-faith attempt to provide the requested information, even if the answers are incomplete. See Houtchins v. Houtchins, 727 S.W.2d 181 (Mo. Ct. App. 1987) (error to strike wife's answer where good-faith, albeit incomplete, responses were given to interrogatories).
Prejudice. A trial court should not sanction a spouse for a minor violation that does not result in any prejudice to the opposing party. See Rapacke v. Rapacke, 442 N.W.2d 340 (Minn. Ct. App. 1989). Most discovery violations in equitable distribution proceedings injure the spouse seeking information in a material way, however. Typically, the noncompliance hampers preparation for settlement and trial, causes substantial delay, and leads to higher attorney's fees.
Authority to Sanction. Statutes and/or court rules generally provide for various sanctions to enforce discovery procedures. The court cannot grant a discovery sanction which is beyond its authority. See Weizenbaum v. Weizenbaum, 12 Va. App. 899, 407 S.E.2d 37 (1991) (beyond court's authority to make partial lump-sum alimony award as discovery sanction).
Selection of Sanction. The sanction selected by the court should be tailored to suit the particular violation. In re Marriage of Lai, 152 Ill. App. 3d 11, 625 N.E.2d 330, 335 (1993) ("Sanctions must be proportionate to the gravity of the violation."); Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super. Ct. 1998) (when formulating discovery sanction, court must "select a punishment which `fits the crime'").
The court may not impose an extreme sanction when the noncompliance can be addressed effectively in some other way. See In re Marriage of Lai. Moreover, the court may not pile on additional sanctions that are unnecessary and serve only as punishment. See Cohen v. Cohen, 228 A.D.2d 961, 644 N.Y.S.2d 831 (1996) (error to impose 20% penalty in valuing husband's business due to his failure to disclose information relevant to valuation of business where order of preclusion had already been entered as a result of husband's failure to disclose).
Factors that bear on the selection of an appropriate sanction include:
* The degree of willfulness or bad faith involved in the violation How deliberate and flagrant was the noncompliance? See Giesler v. Giesler, 731 S.W.2d 33, 35 (Mo. Ct. App. 1987) (drastic remedy of default judgment justified given husband's "wilful disregard" for court's authority); Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super. Ct. 1998) (appropriate to deny husband right to present evidence given his "intransigence" prior to trial, his "disingenuous" claims that he did not have requested information, and his "belated" offer to produce evidence).
* The reason for the violation What explanation or excuse is offered for the noncompliance? See In re Marriage of Lai, 152 Ill. App. 3d 11, 625 N.E.2d 330 (1993) (abuse of discretion to strike husband's pleadings and enter default judgment against him where court rescheduled deposition on very short notice after husband's initial failure to appear, husband was abroad, and he did not receive notice of court-scheduled deposition).
* The significance of the information in question Did the noncompliance involve a material issue in the proceedings or a major marital asset? See Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500 (1988) (husband failed to provide complete information about insurance agency that he started during marriage).
* The impact of the violation How much did the noncompliance hamper the innocent spouse's ability to develop his or her case? How much inconvenience, delay, and expense did the noncompliance cause? How much did the misconduct disrupt the orderly process of the action? See Hein v. Hein, 717 A.2d 1053 (Pa. Super. Ct. 1998) (court took note of numerous court hearings and delays caused by husband's persistent noncompliance).
* The duration of the violation How long did the noncompliance last? See Hamlett v. Reynolds, ___ Nev. ___, 963 P.2d 457 (1998) (noting futile attempts over course of a year). Is it continuing, or has it been cured? See White v. White, 509 So. 2d 205 (Miss. 1997) (dismissal of husband's pleadings for noncompliance with discovery orders reversed as too harsh where husband belatedly complied with orders nearly six weeks before the wife's motion for dismissal and more than three months before trial).
* The quantity of violations Was the noncompliance an isolated occurrence, or were many orders ignored? Marshall v. Marshall, 915 P.2d 508 (Utah Ct. App. 1996) (not abuse of discretion to enter default judgment against husband for noncompliance with numerous discovery orders).
* The extent of notice to the disobedient spouse How many times has the spouse been warned of the need to comply and the possible consequences of continued noncompliance? See Whitworth v. Whitworth, 878 S.W.2d 479 (Mo. Ct. App. 1994) (emphasizing that husband received repeated notice before his pleadings were struck).
* The efficacy of various sanctions under the circumstances What sanction would be most effective to remedy any prejudice and to deter future discovery violations? See White v. White, 509 So. 2d 205 (Miss. 1987) (order dismissing husband's pleadings reversed in view of availability of other sanctions).
* The part played by opposing counsel Was the violation attributable to opposing counsel rather than the opposing party? See, e.g., In re Marriage of Colombo, 197 Cal. App. 3d 572, 242 Cal. Rptr. 100 (1987) (wife should not be sanctioned by order precluding evidence where delay in filing pretrial statement was fault of her attorneys and not the result of her failure to cooperate with counsel); Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989) (monetary sanction against wife was abuse of discretion where she was reasonably relying on advice of her attorney offered in good faith).
* Lack of effort to obtain a protective order If the recalcitrant spouse claims that the discovery requests were onerous or sought privileged information, did he or she take any steps to seek a protective order? See Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500 (1988) (noting that husband never sought a protective order).
Standard of Review. The trial court's decision regarding discovery sanctions is reviewed under an abuse-of-discretion standard. Hamlett v. Reynolds, ___ Nev. ___, 963 P.2d 457 (1998). Hence, reversal on appeal is relatively rare. See In re Marriage of Economou, 224 Cal. App. 3d 1466, 274 Cal. Rptr. 473 (1990) (discovery sanction will be reversed only if arbitrary or capricious).
Ethical Considerations. As a matter of professional ethics, lawyers must not countenance a client's discovery violations or engage in obstructive behavior themselves.
Under Rule 3.4(d) of the American Bar Association's Model Rules of Professional Conduct, which have been adopted in most states, lawyers must not fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party. Rule 3.2 requires lawyers to make reasonable efforts to expedite litigation consistent with the interests of clients, and Rule 3.4(c) requires lawyers not to knowingly disobey court orders and rules.
With these ethical obligations in mind, lawyers should actively encourage a recalcitrant client to comply with discovery requests, and they should document their efforts to procure compliance. See generally In re Marriage of Williams, 421 N.W.2d 160 (Iowa Ct. App. 1988) (warning members of the bar that they should not only cooperate with opposing counsel on discovery matters but also take responsibility for assuring compliance).
II. Specific Sanctions
Denial of Right to Contest. The most severe sanction for discovery violations is to preclude the recalcitrant spouse from contesting the other spouse's position, generally by striking the guilty spouse's pleading and entering a default judgment. Although extreme, this sanction is appropriate in cases of persistent defiance of discovery orders over an extended period of time. See Holt v. Holt, 472 A.2d 820 (Del. 1984); Nollenberger v. Nollenberger, 122 Idaho 186, 832 P.2d 757 (1992); In re Marriage of Glusek, 168 Ill. App. 3d 987, 523 N.E.2d 126 (1988); Draggoo v. Draggoo, 223 Mich. App. 415, 566 N.W.2d 642 (1997); Whitworth v. Whitworth, 878 S.W.2d 479 (Mo. Ct. App. 1994); Giesler v. Giesler, 731 S.W.2d 33 (Mo. Ct. App. 1987); In re Marriage of Massey, 225 Mont. 394, 732 P.2d 1341 (1987); Hamlett v. Reynolds, ___ Nev. ___, 963 P.2d 457 (1998); Fucci v. Fucci, 166 A.D.2d 551, 560 N.Y.S.2d 833 (1990); Ryan v. Ryan, 179 A.D.2d 895, 576 N.Y.S.2d 655 (1991); Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500 (1988); Marshall v. Marshall, 915 P.2d 508 (Utah Ct. App. 1996); Panozzo v. Panozzo, 904 S.W.2d 780 (Tex. App. 1995).
A different view is that the trial court may not divide property without full financial information, so the court must take steps to obtain the information rather than simply going ahead with incomplete information. See Lambert v. Lambert, 180 W. Va. 317, 376 S.E.2d 331 (1988).
Denial of the right to contest is obviously a very harsh sanction that should be handed out only as a last resort. Accordingly, this sanction has been refused in some cases. E.g., Reynolds v. Reynolds, 595 A.2d 385 (Del. 1991); Ardizonne v. Bailey, 542 A.2d 806 (Del. Fam. Ct. 1987).
Moreover, in some cases appellate courts have reversed orders imposing this sanction as too harsh. E.g., In re Marriage of Colombo, 197 Cal. App. 3d 572, 242 Cal. Rptr. 100 (1987); Harper-Elder v. Elder, 701 So. 2d 1230 (Fla. Dist. Ct. App. 1997); Neal v. Neal, 636 So. 2d 810 (Fla. Dist. Ct. App. 1994); Reep v. Reep, 565 So. 2d 814 (Fla. Dist. Ct. App. 1990); Cadwell v. Cadwell, 549 So. 2d 1133 (Fla. Dist. Ct. App. 1989); In re Marriage of Lai, 152 Ill. App. 3d 111, 625 N.E.2d 3390 (1993); White v. White, 509 So. 2d 205 (Miss. 1987); Houtchins v. Houtchins, 727 S.W.2d 181 (Mo. Ct. App. 1987); J.B.C. v. S.H.C., 719 S.W.2d 866 (Mo. Ct. App. 1986).
Limits on Right to Present Evidence. A related but somewhat less serious sanction is denial of the right to present evidence on the issues connected with the discovery violation. See, e.g., In re Economou, 224 Cal. App. 3d 1466, 274 Cal. Rptr. 473 (1990); In re Marriage of Glusek, 168 Ill. App. 3d 987, 523 N.E.2d 126 (1988); Beck v. Beck, 112 Md. App. 197, 684 A.2d 878 (1996); Draggoo v. Draggoo, 223 Mich. App. 415, 566 N.W.2d 642 (1997); Maillard v. Maillard, 243 A.D.2d 448, 663 N.Y.S.2d 67 (1997); Cohen v. Cohen, 228 A.D.2d 961, 644 N.Y.S.2d 831 (1996); Serdaroglu v. Serdaroglu, 209 A.D.2d 604, 622 N.Y.S.2d 50 (1994); Kandel v. Kandel, 129 A.D.2d 617, 514 N.Y.S.2d 404 (1987); Broome v. Broome, 112 N.C. App. 823, 436 S.E.2d 918 (1993); Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500 (1988); Hein v. Hein, 717 A.2d 1053 (Pa. Super. Ct. 1998). One court criticized this sanction, however, as enabling the nonsanctioned spouse to dissipate marital assets with impunity. A wiser approach is to deem the nonsanctioned spouse's allegations to be true, the court said. Miceli v. Miceli, 233 A.D.2d 372, 650 N.Y.S.2d 241 (1996).
Where a party fails to identify a potential witness when responding to a discovery request for that information, exclusion of the witness's testimony is an accepted sanction. See, e.g., Ashton v. Ashton, 31 Conn. App. 736, 627 A.2d 943 (1993); In re Hartian, 172 Ill. App. 3d 440, 526 N.E.2d 1104 (1988); Kaprelian v. Kaprelian, 236 A.D.2d 369, 653 N.Y.S.2d 634 (1997); Vicinanzo v. Vicinanzo, 193 A.D.2d 962, 598 N.Y.S.2d 362 (1993); Markantonis v. Tropoli, 730 S.W.2d 91 (Tex. App. 1987); Decker v. Decker, 17 Va. App. 12, 435 S.E.2d 407 (1993).
An order excluding evidence should not extend to evidence on issues unrelated to the discovery violation. See Getter v. Getter, 90 Ohio App. 3d 1, 627 N.E.2d 1043 (1993) (decision to impose sanctions against husband for failing to produce business records was not abuse of discretion, but sanctions were overbroad to extent that they excluded evidence on issues unrelated to amount of his income).
Also, where the discovery violation does not prejudice the other party, the evidence should not be excluded. See, e.g., Woods v. Woods, 653 So. 2d 312 (Ala. Civ. App. 1994); Ervin v. Ervin, 404 N.W.2d 892 (Minn. Ct. App. 1987); In re Marriage of Dirnberger, 237 Mont. 398, 773 P.2d 330 (1989).
A party who is precluded from presenting evidence may nevertheless be permitted to cross-examine the other spouse's witnesses. E.g., Grande v. Grande, 129 A.D.2d 612, 514 N.Y.S.2d 250 (1987). But see Draggoo v. Draggoo, 223 Mich. App. 415, 566 N.W.2d 642 (1997) (husband precluded from participating in property division hearing); Portell v. Portell, 643 S.W.2d 18 (Mo. Ct. App. 1982). When evaluating the extent to which the sanctioned party will be permitted to participate in the hearing or trial, the court should consider whether and/or how the potential participation will facilitate the truth-seeking process. Hamlett v. Reynolds, ___ Nev. ___, 963 P.2d 457 (1998).
Contempt. The court's contempt power can be invoked against a spouse who willfully violates discovery orders. E.g., Figures v. Figures, 624 So. 2d 188 (Ala. Civ. App. 1993) (husband and his attorney were held in contempt for failing to comply with discovery orders); Braverman v. Braverman, 151 A.D.2d 713, 542 N.Y.S.2d 784 (1989).
Courts generally have inherent power, sometimes defined or limited by statute, to hold parties who disobeys their orders in contempt. See 17 Am. Jur. 2d Contempt 41, 130 (1990). Contempt is classified as either civil or criminal in nature. In civil contempt, the court attempts to coerce the defiant party into complying with an order by imposing fines and/or jail time that can be avoided by complying with the underlying order. In criminal contempt, courts punish the defiant party for disobeying an order with a fine and/or jail time which the party is powerless to escape by compliance. See id. 166, 167.
As a general rule, contempt which occurs outside the court's presence, termed "indirect" contempt, cannot be punished summarily in the same way as courtroom misconduct. See id. 194. Most discovery violations constitute indirect contempt and therefore require at least notice and a hearing before the disobedient spouse can be punished for noncompliance. See Hartman v. Hartman, 417 N.W.2d 173 (N.D. 1987).
Furthermore, when the contempt sanction is criminal, the essential procedural safeguards generally applicable to criminal cases must be afforded to the accused party. See Diamond v. Diamond, 715 A.2d 1190 (Pa. Super. Ct. 1998) (husband was not afforded procedural due process, but he waived right to challenge conviction on that basis by failing to object). Furthermore, guilt must be proven beyond a reasonable doubt. Id. (evidence insufficient to prove wrongful intent required for criminal contempt conviction).
Unlike other discovery sanctions, a criminal contempt conviction may generally be appealed immediately, without awaiting the conclusion of the underlying action. Id.
Adverse Inference. Another approach to deal with discovery violations is for the trial court to resolve factual disputes against the spouse who refused to provide requested discovery. For one thing, it is reasonable to consider a spouse's discovery violations when assessing his or her credibility. Moreover, an adverse inference is justifiable on the theory that the missing information would favor the other spouse's position. See, e.g., In re Marriage of Williams, 421 N.W.2d 160 (Iowa Ct. App. 1988); Wiand v. Wiand, 178 Mich. App. 137, 443 N.W.2d 464 (1989); Hall v. Hall, 804 S.W.2d 411 (Mo. Ct. App. 1991); Holmes v. Holmes, 151 A.D.2d 911, 542 N.Y.S.2d 884 (1989); Richter v. Richter, 131 A.D.2d 453, 515 N.Y.S.2d 876 (1987); Hecker v. Hecker, 448 N.W.2d 207 (N.D. 1989).
Factor in Award. The court may consider a spouse's discovery violation as a factor weighing in favor of the other spouse at the distribution stage. See, e.g., Emanuelson v. Emanuelson, 26 Conn. App. 527, 602 A.2d 609 (1992); In re Marriage of Marx, 281 Ill. App. 3d 897, 667 N.E.2d 734 (1996); In re Marriage of Williams, 421 N.W.2d 160 (Iowa Ct. App. 1996); Amrhein v. Amrhein, 29 Mass. App. Ct. 336, 560 N.E.2d 157 (1990); Gadomski v. Gadomski, 245 A.D.2d 579, 664 N.Y.S.2d 886 (1997); Pulawski v. Pulawski, 463 A.2d 151 (R.I. 1983); Faram v. Gervitz-Faram, 895 S.W.2d 839 (Tex. App. 1995); Capellen v. Capellen, 888 S.W.2d 539 (Tex. App. 1994); Shrader v. Shrader, 196 W. Va. 649, 474 S.E.2d 579 (1996). A different view is that courts should use the traditional sanctions for discovery violations rather than altering the property division. See Shoffner v. Shoffner, 91 N.C. App. 399, 371 S.E.2d 749 (1988).
Discovery violations have been held not to warrant a larger property distribution in favor of the innocent spouse in some cases. See, e.g., Roe v. Roe, 402 N.W.2d 829 (Minn. Ct. App. 1987); Dodson v. Dodson, 855 S.W.2d 383 (Mo. Ct. App. 1993); Desnoyers v. Desnoyers, 142 A.D.2d 873, 530 N.Y.S.2d 906 (1988).
Award of Attorney's Fees and Costs. Courts in numerous cases have cited a spouse's noncompliance with discovery obligations or orders as a reason justifying an award of attorney's fees. E.g., In re Marriage of Quay, 18 Cal. App. 4th 961, 22 Cal. Rptr. 2d 537 (1993); Dougherty v. Leavell, 582 N.E.2d 442 (Ind. Ct. App. 1991); Zatzkis v. Zatzkis, 632 So. 2d 302 (La. Ct. App. 1993); Gravenstine v. Gravenstine, 58 Md. App. 158, 472 A.2d 1001 (1984); Bowman v. Bowman, 493 N.W.2d 141 (Minn. Ct. App. 1992); Jensen v. Jensen, 409 N.W.2d 60 (Minn. Ct. App. 1987); Keingarsky v. Keingarsky, 145 A.D.2d 537, 536 N.Y.S.2d 92 (1988); Long v. Long, 957 S.W.2d 825 (Tenn. Ct. App. 1997).
An award of attorney's fees and costs may be made as a specific sanction for the discovery violation. E.g., Gravenstine v. Gravenstine. More often, the discovery violation is considered as a factor in determining a comprehensive award of fees and costs at the conclusion of the case. E.g., Figures v. Figures, 624 So. 2d 188 (Ala. Civ. App. 1993); Morgan v. Morgan, 854 P.2d 559 (Utah Ct. App. 1993).
The award must reflect the actual fees and costs incurred as a result of the discovery violation and may not go beyond a reasonable amount. See Fontanella v. Fontanella, 167 A.D.2d 185, 561 N.Y.S.2d 576 (1990); Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500 (1988).
An award of attorney's fees and costs may be made in addition to other sanctions. E.g., Hein v. Hein, 717 A.2d 1053 (Pa. Super. Ct. 1998).
Sanctions Against Counsel. In cases where the discovery violation is a lawyer's fault, or where the lawyer and client are both at fault, sanctions have sometimes been imposed directly on the lawyer. See, e.g., Figures v. Figures, 624 So. 2d 188 (Ala. Civ. App. 1993) (noting that lawyer was held in contempt along with client for discovery violation); Childs v. Argenbright, 927 S.W.2d 647 (Tex. App. 1996) (affirming monetary sanction against lawyer in divorce case for obstructive objections to discovery and for failure to make any substantive responses).
Postjudgment Proceedings. If a spouse conceals or misstates key financial information requested during discovery and the other spouse learns of the concealment or falsity after the decree, in some jurisdictions the decree may be reopened for fraud. See, e.g., Barganier v. Barganier, 669 So. 2d 933 (Ala. Civ. App. 1995); see also Fraud and Duress Relief from Judgment, 12 Equitable Distribution J. 73-79 (July 1995).
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