Civil Procedure in a Nutshell by Mary Kay Kane

Author:Mary Kay Kane
Language: eng
Format: epub, pdf
ISBN: 9781683281115
Publisher: West Academic
Published: 2017-03-15T00:00:00+00:00

§ 3–30.

Protective Orders and Sanctions: Controlling Abuses

The potential for the discovery process to be abused is apparent—continual requests for information that is not essential, but fits within the broad notion of relevance, can be made to harass the opposing side, and obdurate refusals to respond to legitimate requests requiring court intrusion can be costly, as well as result in delay. Modern discovery provisions thus include several tools by which the courts are encouraged to protect against abuse and ensure that discovery is used for its legitimate purposes.

A common device that is used is the protective order, allowing the court to protect a party from harassment or unduly burdensome requests. Fed.Rule 26(c). Using this power, the court may eliminate discovery or limit it to only what is necessary. It also may control the time and place of discovery so as to protect parties from extremely inconvenient discovery demands. The federal courts are particularly encouraged to identify and discourage discovery abuse through provisions authorizing them to issue orders on their own initiative to limit discovery that is too cumulative or that might be obtained in a less burdensome or expensive fashion. Fed.Rule 26(b)(2)(B). As noted by the Supreme Court, this power to limit discovery proportionally provides the courts with sufficient flexibility to protect against overreaching in discovery without resorting to tightening the 152

pleading rules. Crawford-El v. Britton, 523 U.S. 574 (1998).

Along similar lines, the federal rules include a signature requirement for all discovery documents; the signature constitutes a certificate by the attorney that the request or response is not being made for an improper purpose and is not unreasonable. Sanctions, including attorney fees, are authorized for any violations. Fed.Rule 26(g). In this way, attorneys are encouraged to consider seriously the legitimacy of each discovery request and response.

In addition to these protective devices, every set of discovery rules contains a general provision for sanctions in the event court intervention is invoked to force a party to cooperate with a legitimate inquiry. See, e.g., Fed.Rule 37. Sanctions are available because of the violation of a specific court order, not because of the failure to comply with a party’s discovery request. Most commonly, the court is permitted to assess expenses. A party who forced an adjournment of a deposition, or who fails to appear for a properly noticed deposition or to answer or respond to an otherwise proper discovery request may be required to pay any expenses incurred by the opponent because of those tactics. In cases of willful disobedience, the court may dismiss the case or enter a default judgment. Similarly, it may deem established all matters about which the party refused to respond or strike those matters from the pleadings. Finally, when the court has ordered a party to respond to certain inquiries and 153

the party has refused to do so, a contempt judgment may be entered, including a possible jail sentence and fine. The possibility of sanctions acts as a deterrent to attorneys who otherwise might be reluctant to cooperate fully in discovery.

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