When a party is obliged to bring a motion to compel his opponent to respond to a request for production of documents, the court is authorized to impose a monetary sanction on the uncooperative opponent. Typically, the request for imposition of the sanction will be included in the moving papers, but is that procedure mandatory? The Third District Court of Appeal, in a case out of Calaveras County, concludes that the sanction request can be presented in a separate motion, filed after the original motion has been heard and granted.
Morrie London was terminated after nine years working a manager in the copper shop of Dri-Honing Corporation. He sued, seeking damages for wrongful discharge. Dri-Honing urged that it was justified in terminating London because of incidents of insubordination. It also contended that the termination was warranted because the shop had been unprofitable under London's management. When London requested production of records that would disclose the shop's profitability or lack of profits, Dri-Honing refused to provide the information, contending it was "irrelevant." London filed a motion to compel production of the records.
At the motion hearing, Dri-Honing was given a choice: it could rely on its unprofitability rationale and produce the documents, or it could keep the documents confidential and be limited to relying solely on its insubordination rationale. Dri-Honing elected to keep the documents confidential.
At the hearing, the trial judge asked London's attorneys to state the amount they had incurred in fees for the motion, so that Dri-Honing could be required to pay that amount as a sanction for contesting its discovery obligations. Dri-Honing objected, correctly, that no sanctions could be imposed because they had not been mentioned or claimed in the moving papers. The court then permitted London to file a separate motion for the sanctions, which it granted in the amount of $6,000. Dri-Honing appealed, and the Court of Appeal affirmed the order for sanctions.
The bulk of the opinion consists of an analysis of the structure of the sanctions provisions in the Discovery Act. The Court of Appeal concludes that the favored approach is to make any request for sanctions in the original moving papers, but that there is nothing in the statutory structure that precludes a separate, later application, so long as it is made with reasonable promptness.
The Court expresses skepticism for most of Dri-Honing's arguments, including particularly the suggestion that the sanctions demand should be made in the original papers to permit the responding party to assess whether it makes more sense to fight the discovery or to surrender voluntarily. That calculus, the Court notes, runs counter to the policy requiring the voluntary production of relevant information:
As a final gasp, Dri-Honing states that the 'sanctions request must be included in the motion to compel in order to enable the nonmoving party and his attorney to consider whether and in what manner they will oppose the motion.' We note that a party is obligated to comply with the discovery statutes cooperatively and in good faith, regardless of what sanctions it may or may not be subject to. The suggestion that a party’s cooperation during discovery depends on how heavy the hammer is that hangs above its head is troublesome.
[Emphasis added.]
The decision in London v. Dri-Honing Corporation (April 19, 2004), Case No. C043096, can be found at these links in PDF
and Word formats.
Comments