Motion for Sanctions for Failure to Comply with Discovery in District of Columbia

Understanding the Purpose and Significance of a Motion for Discovery Sanctions

“Super.Ct.Civ.R. 37 provides remedies for the failure of parties to make or cooperate in discovery. Subsection (a) describes the procedures for a party to make a motion for an order by the court compelling another party to comply with discovery requests.” (Perry v. Sera, 623 A.2d 1210, 1215-16 [D.C. 1993].)

“Subsection (b)(2) gives the court a range of sanctions to impose on parties that do not comply with court orders concerning discovery. This section states that sanctions may be imposed if ‘a party ... fails to obey an order to provide or permit discovery, including an order made under subparagraph (a) of this Rule or Civil Rule 35, or if a party fails to obey an order entered under Civil Rule 26(f) [should correctly read 26(g).]’” (Perry v. Sera, 623 A.2d 1210, 1215-16 [D.C. 1993] citing Super.Ct.Civ.R. 37(b)(2).)

“Thus, by its own terms, the Rule does not limit itself to allowing sanctions only when an order compelling discovery under Rule 37(a) has been made.” (Id.)

No Requirement for Prior Filing of Motion to Compel in Filing Motion for Discovery Sanctions

“Commentators and caselaw likewise provide support for our conclusion that an order compelling discovery under Rule 37(a) is not a prerequisite to sanctions under Rule 37(b). In interpreting FED.R.CIV.P. 37(b)(2), which has nearly identical language to our rule,Professors Wright and Miller state that:

‘Rule 37(b) provides comprehensively for sanctions for failure to obey discovery orders. It makes specific reference to orders on motions under Rule 37(a) to compel discovery and to orders on motions under Rule 35 for a physical or mental examination [and also now to Rule 26(f)] but it refers also to any ‘order to provide or permit discovery’ and thus makes these sanctions available to orders against a party having this effect regardless of what rule they were made under.’”

(Perry v. Sera, 623 A.2d 1210, 1216 [D.C. 1993] quoting 8 Charles A. Wright AND Arthur R. Miller, Federal Practice and Procedure, § 2289 [1970 and 1992 Supp.].)

Trial Court Discretion in Deciding Motions for Discovery Sanctions

“When determining the propriety of a decision on a discovery motion the, ‘standard of review is ... deferential, and in the absence of a showing of abuse of discretion or legal error, it is [this court's] duty to sustain the motions judge's disposition.’” (Dada v. Children's National Medical Center, 763 A.2d 1113, 1115 [D.C. 2000] citing Haqq v. Dancy-Bey, 715 A.2d 911, 913 [D.C. 1998]; see Perry v. Sera, 623 A.2d 1210, 1217-18 [D.C. 1993].)

“[A] trial court abuses its discretion by choosing dismissal if ‘severe circumstances’ have not been shown which warrant dismissal.” (Perry v. Sera, 623 A.2d 1210, 1218 [D.C. 1993] citing Braxton v. Howard University 472 A.2d 1363, 1365 [D.C. 1984].)

“This court has evaluated two factors to see if ‘severe circumstances’ exist:

1. whether the opposing party suffered any prejudice due to the failure to respond to discovery requests and
2. whether the failure was "willful" — defined as a conscious or intentional failure to act as opposed to accidental or involuntary noncompliance.”

(Id.)

Recent Precedent and Rulings on Motion for Discovery Sanctions

“Discovery sanctions under Rule 37(b) are intended to be punitive as well as compensatory and to serve as a general, as well as a specific, deterrent. Sanctions are levied to penalize the offending party, to prevent it from profiting by its misconduct, and to enforce compliance, as well as to compensate the injured party. (Edwards v. Climate Conditioning, 942 A.2d 1148, 1154 [D.C. 2008].)

“Sanctions also are meant to deter other litigants from engaging in discovery abuses in other cases. ((Edwards v. Climate Conditioning, 942 A.2d 1148, 1154 [D.C. 2008] concluding that “the monetary sanctions in this case fairly and reasonably served those purposes.”])

Before default judgment may be imposed as a sanction, ‘the trial court must first consider whether less severe and more appropriate sanctions ... [are] justified.’” (Haynes v. District of Columbia, 503 A.2d 1219, 1224 [D.C. 1986] [quoting Koppal v. Travelers Indent. Co., 297 A.2d 337, 339 [D.C. 1972].)

“Flagrant noncompliance alone is not enough to justify a sanction of default judgment or dismissal, as this court held in Braxton v. Howard Univ., 472 A.2d 1363 (D.C. 1984).” (Boone v. Cedro Ltd., 908 A.2d 1165, 1167 [D.C. 2006].)