Discovery Abuses and Attorney Sanctions – Authority all Advocates Should Know

2012 | Topics: Business Litigation, Class Actions, Product Liability, Warranty

In May 2010, U.S. District Judge Jeffrey White ordered San Francisco solo practitioner Gregory Haynes to pay over $360,000 in sanctions for litigation misconduct. Haynes appealed the decision after arguing, to no avail, that he could not afford to pay.

In July 2012, the U.S. Court of Appeals for the Ninth Circuit, in an opinion written by Judge Stephen Reinhardt, diverged from the Seventh Circuit precedent that persuaded the court below and held that a district court may take an attorney’s ability to pay sanctions into consideration when determining the amount of sanctions. Haynes v. City and County of San Francisco, No. 10-16327, 2012 U.S. App. LEXIS 15102 (9th Cir. July 23, 2012). Notably, though, the Ninth Circuit simply found that the district court has the discretion to reduce the award because of appellant’s inability to pay. That is, the Ninth Circuit determined only that a district court may take an attorney’s ability to pay into consideration, not that it must do so.

The significant tab Haynes faces warrants revisiting some recent case law involving California courts’ broad power to impose sanctions. In Clement v. Alegre (2009) 177 Cal.App.4th 1277, the court explained that “[m]isuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, unsuccessfully making or opposing discovery motions without substantial justification, and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so.” Id. at p. 1285 (internal quotation marks and citations omitted).

Although this may be well-known to attorneys, the court’s ensuing analysis will likely surprise counsel: “Even assuming we agreed that neither plaintiffs nor [plaintiffs’ counsel] intended to be evasive—and we do not—their intent is not relevant here. There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed.” Id. at p. 1286 (internal quotation marks and citations omitted).

Ultimately, the appellate court agreed with the trial court and determined that “[s]anctions were warranted here, as plaintiffs’ objection to the term ‘economic damages’ was without ‘substantial justification’ and their responses to those interrogatories were evasive.” Id. at p. 1287 (citing §§ 2023.030, subd. (a), 2023.010, subds. (e), (f)); see also Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971 (stating that California Code of Civil Procedure section 2023 “does not require a misuse of the discovery process to be willful before monetary sanctions may be imposed.”).

Despite common belief, willfulness is not a prerequisite to the imposition of sanctions for discovery misuse. Although acting in good faith is not a panacea, Section 2023 does allow one against whom sanctions are sought to show substantial justification to avoid the imposition of sanctions. See, e.g., Kohan v. Cohan, supra, 229 Cal.App.3d at p. 971.