For some, discovery is merely a necessary evil in the litigation process. And so, it should come as no surprise that the discovery process is often ripe with gamesmanship. A recent visualization reminds practitioners, however, that discovery is meant to be cooperative, and gamesmanship – expressly repetitive and intentional gamesmanship – may be met with “death penalty sanctions” (Heslin v Jones, (2021 WL 4571198 [Tex Dist, Travis County, Sept. 27, 2021]).
Background:
The facts of the underlying litigation are not relevant. Rather defendants’ flagrant refusal to comply with their discovery obligations is what warrants discussion. On October 18, 2019, the Court ordered expedited discovery, including written discovery and depositions, to be conducted with respect to a particular rationalization of action. For two months defendants failed in “numerous respects” to comply with the Court’s order, necessitating motion practice. On December 20, 2019, the Court held “[d]efendants in contempt for intentionally disobeying [a discovery] order” (“Order”), but reserved “all spare remedies” based on defendants’ representations that they would promptly remediate any discovery deficiencies. Defendants, however, reneged on their promise.
In response, the Court entered a default judgment on liability as versus defendants. In issuing this severe sanction, Justice Gamble detailed defendants’ history of noncompliant and intentional discovery failures and terminated that the imposition of “lesser remedies…would be inadequate in light of the history of the Defendants self-mastery in this court” given the reality that “judicial admonishments, monetary penalties, and non-dispositive sanctions have all been ineffective at deterring the [discovery] abuse” and “general bad faith tideway to litigation” engaged in by defendants. Therefore, considering lesser sanctions had proven ineffective when previously ordered, the Court unswayable that anything shy of the default judgment on liability “would not ratherish serve to correct the Defendants’ persistent discovery abuses” and “unwarranted condone for the Court’s authority.”
Conclusion:
Although this specimen illustrates egregious discovery misconduct, it serves as an important reminder that discovery gamesmanship and win-at-all-costs tactics will not be tolerated during the discovery process. And where, as here, the games are indicative of a bad faith tideway to litigation, judges can, and will, reach into their armory and impose significant sanctions.
Thank you to second year associate, James Maguire in the Firm’s Uniondale office, for his research assistance related to today’s blog.
