Chapter 11 Disclosure And Discovery

Part V Remedies And Sanctions

A In General 1 [112325] Rules Governing2 [112326] Compare--Rule 11 Sanctions3 [112327] Discovery Sanctions Process--In General=gt [1123271] PRACTICE POINTERa [112328] Exceptionsb [112329] Compare--failure to respond to RFAs(1) [112330] Cost of proof sanctions4 [112340] Automatic Sanction for Failure to Make Mandatory Disclosures a [112341] No court order necessaryb [112342] Court discretion(1) [1123421] Burden on party threatened with sanctionsc [112343] Alternative sanctions(1) [112344] Due process limitations1 [112325] Rules Governing Sanctions for disclosure and discovery violations are

provided under FRCP 37 Additional sanctions are authorized under FRCP 26(g) for violation of the certification arising upon signing disclosure and discovery documents (see para 111211)

2 [112326] Compare--Rule 11 Sanctions Rule 11 does not apply to disclosures and discovery requests (including objections and motions) [FRCP 11(d)] Although FRCP 37 and FRCP 26(g) sanctions are similar to those contained in Rule 11 there are important differences

bull Sanctions for violation of the Rule 26(g) certification arising upon signing disclosures or discovery documents may be imposed only on the signer of the document or the party on whose behalf the certificate was made (Rule 11 permits sanctions against the signers law firm as well see para 17177) [FRCP 26(g)(3)]

bull A court may act on its own (sua sponte) in ordering payment of fees as sanctions under Rule 26(g) (Rule 11 limits a courts power to impose sanctions sua sponte see para 17513) [FRCP 26(g)(3)]

bull There is no safe harbor provision under Rule 26(g) (compared to the 21- day waiting period applicable to Rule 11 sanction motions see para 17390)

bull There is no limit on the courts discretion under Rule 37 to award fees and costs as sanctions as there is under Rule 11 (see para 17512)

3 [112327] Discovery Sanctions Process--In General The first step generally is to seek a court order compelling the discovery sought (para 112350 ff) The only sanction available at this point is an award of reasonable expenses on the motion (para 112380) Once a court order is obtained if the discovery is still not forthcoming the whole panoply of Rule 37 sanctions becomes available (para 112400 ff)

=gt [1123271] PRACTICE POINTER Resort to sanctions can often be avoided by arranging with the judge in advance that any discovery dispute may be presented to the judge informally by telephone or short letter

a [112328] Exceptions Even without a prior court order the full range of Rule 37 sanctions is available where a party has

--failed to appear for deposition or --made no response to FRCP 33 interrogatories or FRCP 34 inspection requests [FRCP 37(d)

see para 112402]

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b [112329] Compare--failure to respond to RFAs A motion to compel is not required where a party fails to respond to requests for RFAs Rather the matters set forth in the RFAs are deemed admitted [FRCP 36(a) see para 112070 ff]

(1) [112330] Cost of proof sanctions If the requesting party proves the truth of matters covered by the RFAs at trial the court may order that the party who should have made the admission pay the reasonable expenses incurred in making that proof including reasonable attorney fees [FRCP 37(c)(2) see para 112110] [112331-2339] Reserved

4 [112340] Automatic Sanction for Failure to Make Mandatory Disclosures Even without a prior court order a party who has failed to comply with the mandatory disclosure provisions of Rule 26(a) (see para 11220 ff) or the supplemental disclosure provisions of Rule 26(e)(1) (see para 111240 ff) is subject to an automatic sanction Witnesses documents or other information not properly disclosed cannot be used as evidence [FRCP 37(c)(1) see para 11330]

a [112341] No court order necessary This provision is self-executing there is no need for a litigant to make a motion to compel Nor does the imposition of a sanction under this provision require a violation of a court order as a prerequisite [Chalick v Cooper HospUniv Med Ctr (D NJ 2000) 192 FRD 145 151]

b [112342] Court discretion The court may relieve a party from this sanction upon finding substantial justification for the nondisclosure or that the nondisclosure was otherwise harmless (eg failure to disclose information already known to all parties) [FRCP 37(c)(1) see para 11332]

(1) [1123421] Burden on party threatened with sanctions The potentially sanctioned party bears the burden of proving substantial justification for the nondisclosure or that it was harmless [Roberts ex rel Johnson v Galen of Virginia Inc (6th Cir 2003) 325 F3d 776 781]

c [112343] Alternative sanctions In addition to or instead of the evidence exclusion the court on motion and after affording opportunity to be heard may impose other appropriate sanctions including reasonable expenses and attorney fees caused by the nondisclosure and informing the jury of the failure to make the disclosure [FRCP 37(c)(1) see para 11350] In addition if the court has ordered disclosure the full range of Rule 37 sanctions (other than contempt) becomes available [FRCP 37(c)(1)]

(1) [112344] Due process limitations A full evidentiary hearing is not required in every case Adequate notice that sanctions may be imposed and the opportunity to submit briefs on the issue satisfy the Rule 37(c)(1) requirement of a motion and opportunity to be heard [Paladin Assocs Inc v Montana Power Co (9th Cir 2003) 328 F3d 1145 1164]

Chapter 11 Disclosure And Discovery Part V Remedies And Sanctions

B Order Compelling Discovery 1 [112351] Grounds2 [112352] Motion to Compel Procedurea [112353] Timing(1) [112354] Delaying until trial(2) [112355] Effect of scheduling orders=gt [112356] PRACTICE POINTERb [112357] Court in which action pending (1) [112358] Exception--motions directed to nonparty(2) [112359] Reference to magistrate judge=gt [112360] PRACTICE POINTERc [112361] Format

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(1) [112362] Discovery documents(2) [112363] Expense declaration=gt [112364] PRACTICE POINTER(3) [112365] Compare--joint stipulation procedure (California Central District)d [112366] Conference with opposing counsel requirement(1) [112367] California Central District(a) [112368] Initiating conference(b) [112369] Joint stipulation on unresolved matters1) [112370] No page limit(c) [112371] Execution and filing of stipulation(d) [112372] Supplemental memorandum(e) [112373] Sanctions=gt [112374] PRACTICE POINTER(2) [112375] California Eastern District(3) [112376] California Northern District (a) [112377] Informal resolution by chambers conference(4) [112378] California Southern Districte [112379] Effect of voluntary compliance before hearingf [1123791] Burden on moving partyg [1123795] Factors considered in ruling on motion to compel(1) [1123796] Materiality(2) [1123797] Undue burdenh [112380] Prevailing party costs award(1) [112381] Wilfulness not required(2) [112382] Burden on losing party(3) [112383] Notice and hearing re expense awards(4) [112384] Award against party or attorney (or both)(5) [112385] Apportionment of expenses(6) [112386] Commenti [112387] Postruling protective orders j [112388] Appellate review(1) [112389] Exception--collateral order doctrine(a) [112390] Orders denying privilege claims(b) [112391] Orders against nonparty3 [112392] Effect of Failure to Bring Motion

[112350] Any party upon reasonable notice may apply for an order compelling discovery or disclosure [FRCP 37(a)]

1 [112351] Grounds Such orders are typically required in the following cases bull a deponent fails to answer a question or the person designated by a corporation or other

entity to testify on its behalf lacks sufficient information to answer deposition questions on matters described in the deposition notice

bull a party fails to answer an interrogatory bull a party fails to respond to a request for production or fails to permit inspection as

requested bull answers provided in response to a discovery request are incomplete or evasive [FRCP

37(a)(2)-(3)]2 [112352] Motion to Compel Procedure Motions to compel discovery are governed by

the procedures applicable to all motions (see Ch 12 Motion Practice) subject to the following special requirements

a [112353] Timing There is no limit on motions to compel (unless local rules provide otherwise) However the motion should be made within a reasonable time or the court may find there has been a waiver (especially if the moving party was aware of the deficiency earlier and failed to move promptly or the opposing party would be prejudiced because the discovery cut-off has passed etc) [Kendrick v Heckler (5th Cir 1985) 778 F2d 253 Suntrust Bank v Blue Water Fiber LP (ED MI 2002) 210 FRD 196 200-201 (collecting cases) see Gault v Nabisco Biscuit Co (D NV 1999) 184 FRD 620 622--

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motion to compel further responses denied as untimely when filed 136 days after receipt of allegedly deficient responses and 76 days after close of discovery and no showing that delay caused by matters outside moving partys control see also Choate v National Railroad Passenger Corp (ED MI 2001) 132 FSupp2d 569 574--opponents repeated promises to respond to discovery requests were not sufficient justification for delay in enforcing discovery rights]

(1) [112354] Delaying until trial A motion to exclude evidence at trial based on pretrial discovery violations is likely to be denied The court may fairly infer that the moving party was lying in wait in order to exploit the incurability of its opponents discovery violation rather than undertaking its own discovery [JOM Inc v Adell Plastics Inc (1st Cir 1999) 193 F3d 47 50]

(2) [112355] Effect of scheduling orders Some scheduling orders require that any motion to compel discovery be filed or even heard before the discovery cut-off date others require that such motions be heard before the motion cut-off date [Packman v Chicago Tribune Co (7th Cir 2001) 267 F3d 628 647--motion to compel filed after close of discovery almost always deemed untimely] Greater uncertainty occurs where the motion is made very close to the discovery cut-off date Absent local rules imposing time limits the matter is left to the broad discretion possessed by the district courts to control discovery (W)hat is untimely in one case may not be in another [In re Sulfuric Acid Antitrust Litig (ND IL 2005) 231 FRD 331 333]

=gt [112356] PRACTICE POINTER Depending on the courts local rules it can take a significant period of time to file a discovery motion and have it heard (Eg under CD CA Rule 37 the parties must meet and confer and file a joint stipulation before a motion to compel discovery can be filed) Therefore serve your discovery requests early enough to allow you enough time to file a motion to compel and to use whatever additional information is obtained through the motion to compel to conduct follow-up discovery if necessary before these cut-off dates

b [112357] Court in which action pending Ordinarily a motion to compel is heard in the court in which the action is pending [FRCP 37(a)(1)]

(1) [112358] Exception--motions directed to nonparty An application for order to compel discovery from a person who is not a party must be made in the district where the discovery is being or is to be taken [FRCP 37(a)(1)] Similarly motions to enforce deposition subpoenas to nonparties are brought in the court which issued the subpoena [FRCP 45(c)(2)(B) see para 112289]

(2) [112359] Reference to magistrate judge Local rules frequently provide for referral of discovery motions to magistrate judges (see para 16260 ff) [ED CA Rule 73-305(a) SD CA Rule 261(e) see also CD CA Magistrate Judge Rule 19 28 USC sect 636(b)(1)(A)]

=gt [112360] PRACTICE POINTER If such rules are in effect in your district make sure that your motion to compel is set for hearing before the magistrate judge Setting it for hearing before the district judge may result in rejection of the filing and delay hearing and resolution of the matter

c [112361] Format As with other motions there are three basic elements of a motion to compel discovery

bull adequate notice to the court and other parties (notice of motion) bull supporting facts or evidence on which the motion is based (consisting of declarations

affidavits depositions or other discovery documents etc) and bull points and authorities demonstrating how the law as applied to the facts presented

justifies the relief sought (See Ch 12 Motion Practice) (1) [112362] Discovery documents The discovery request (or deposition question) at

issue and its allegedly insufficient response must be lodged or filed with the court in conjunction with the motion to compel

(2) [112363] Expense declaration A declaration supporting the propriety and amount of expenses requested and proof of compliance with meet and confer requirements (para 112366 ff) is required for an award of expenses

=gt [112364] PRACTICE POINTER Make the judges job easier by setting forth verbatim in a declaration or joint stipulation supporting the motion the discovery requests at issue

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followed by each inadequate response If too voluminous you may summarize this matter (Some districts require a joint stipulation see CD CA Local Rule 37) FORMS

bull NOTICE OF MOTION TO COMPEL DISCOVERY see Cal Prac Guide Fed Civ Pro Before Trial Form No 11L

bull DECLARATION IN SUPPORT OF MOTION TO COMPEL see Form No 11M (3) [112365] Compare--joint stipulation procedure (California Central District) The

above format does not apply in the Central District of California Instead of filing discovery motions the parties are required to submit a Joint Stipulation on the matters in dispute See para 112369

d [112366] Conference with opposing counsel requirement Counsel are required to confer in an effort to resolve disputes regarding discovery or disclosure before bringing motions (The conference need not be in person a phone conference will suffice) The moving papers must include a certification that the movant has in good faith conferred or attempted to confer with the other party in an attempt to resolve the dispute without court action [FRCP 37(a)(2)(A)(B) Soto v City of Concord (ND CA 1995) 162 FRD 603 623--must attempt to have a live exchange of ideas and opinions Tri-Star Pictures Inc v Unger (SD NY 1997) 171 FRD 94 99--movant must detail efforts to confer and explain why they proved useless Hoelzel v First Select Corp (D CO 2003) 214 FRD 634 636--single e-mail message not a meaningful meet and confer]

(1) [112367] California Central District Before any discovery motion can be filed counsel must meet in a good faith effort to eliminate or narrow the dispute An in-person meeting is required if both counsel are in the same county otherwise by telephone [CD CA Rule 37-1]Comment The in-person meeting requirement appears to conflict with FRCP 37(a)(2)(A) and (B) which do not require an in-person meeting

(a) [112368] Initiating conference The moving partys counsel must send a letter requesting a conference identifying each issue or discovery request in dispute and stating briefly the moving partys position and supporting legal authority Within 10 days after receipt of such letter the attorneys shall confer in person (unless the court orders otherwise) The conference shall be held at the office of moving partys counsel unless one of the attorneys is located in a different county or the parties agree to meet elsewhere [ CD CA Rule 37-1]

(b) [112369] Joint stipulation on unresolved matters If the meeting fails to resolve the dispute the parties must submit a joint stipulation signed by all counsel setting forth

bull an (optional) introductory statement from each party not longer than three pages in length

bull a verbatim statement of each question interrogatory or request at issue bull a verbatim statement of the objection response or answer bull each partys contentions with respect to each issue in dispute together with supporting

points and authorities bull each partys statement of how it proposed to resolve each issue in dispute at the meet and

confer with opposing counsel [CD CA Rule 37-21] The title page of the stipulation must state the discovery cut-off date the pretrial conference date and the trial date [CD CA Rule 37-21] In addition a copy of the scheduling order (and any amendments thereto) must be attached to the stipulation [CD CA Rule 37-21] If the stipulation exceeds 10 pages in length (excluding exhibits) it must be accompanied by an indexed table of contents setting forth the headings or subheadings contained therein [CD CA Rule 37-21]

1) [112370] No page limit There is a 25-page limit on points and authorities under Central District Rule 11-6 But this does not apply to stipulations regarding discovery disputes [CD CA Rule 37-21 see Geophysical Systems Corp v Raytheon Co Inc (CD CA 1987) 117 FRD 646 649]

(c) [112371] Execution and filing of stipulation Moving partys counsel must prepare its portion of the joint stipulation and submit it to opposing counsel who has five days to

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add the opposing partys contentions etc The joint stipulation must be completed and signed by the end of the next business day so that it can be filed with the notice of motion [CD CA Rule 37-22]

(d) [112372] Supplemental memorandum Each party may (optional) submit a supplemental memorandum of law no more than five pages in length and no later than 14 days before the hearing date Nothing else may be filed in connection with the motion [CD CA Rule 37-23]

(e) [112373] Sanctions Failure to attend the meeting or cooperate in good faith in preparation of the stipulation is ground for sanctions [CD CA Rule 37-24]

=gt [112374] PRACTICE POINTER Be careful to comply with these requirements in the Central District especially if you are filing a motion to compel close to the discovery cut-off date Failing to do so will result in the joint stipulation being rejected for filing and if you waited until the last minute there may not be sufficient time remaining to refile it

(2) [112375] California Eastern District Before the hearing on any motion under Rules 26 through 37 counsel are required to meet in a good faith effort to resolve their differences that are the subject of the motion If the conference does not resolve the matter the moving party is to draft and file not later than three days prior to the hearing a Stipulation re Discovery Disagreements The stipulation is to set forth the details of the conference a statement of the nature of the case and the issues to be determined and each partys contention on each issue The stipulation is to be signed by all parties Sanctions may be imposed for failure to cooperate [ED CA Rule 37-251]

(3) [112376] California Northern District No discovery motion will be entertained unless counsel have previously conferred concerning all disputed issues A certificate of compliance with the conference requirement must accompany any discovery motion A willful failure to confer may result in an order for the payment of reasonable expenses including attorney fees to the other side [ND CA Rule 37-1(a)]

(a) [112377] Informal resolution by chambers conference After good faith negotiations to resolve the dispute counsel may ask the judge to schedule a chambers conference (in person or by telephone) to resolve the dispute informally [ND CA Rule 37-1(b)]

(4) [112378] California Southern District No discovery motion will be heard unless counsel have previously met and conferred re all disputed issues [SD CA Rule 261(a)--counsel practicing in same county must meet in person otherwise by telephone] Comment The in-person meeting requirement seems inconsistent with Rule 37(a)(2) which requires only that counsel confer not that they meet in person (see para 112366)

e [112379] Effect of voluntary compliance before hearing A party who originally failed to provide information may decide to provide it after a motion to compel has been filed but before the motion is heard In such event the court may still award reasonable expenses and attorney fees (below) unless the moving party failed to make a good faith effort to meet and confer to obtain the disclosure [FRCP 37(a)(4)(A)]

f [1123791] Burden on moving party The burden is on the moving party to demonstrate actual and substantial prejudice from the denial of discovery [In re Sulfuric Acid Antitrust Litig (ND IL 2005) 231 FRD 331 333 see Packman v Chicago Tribune Co (7th Cir 2001) 267 F3d 628 647--denial of motion not an abuse of discretion absent a clear showing that the denial of discovery resulted in actual and substantial prejudice to moving party] [1123792-23794] Reserved

g [1123795] Factors considered in ruling on motion to compel When a district court considers a motion to compel it must evaluate such factors as timeliness good cause utility and materiality [CSC Holdings Inc v Redisi (7th Cir 2002) 309 F3d 988 992]

(1) [1123796] Materiality Courts may deny motions to compel depositions that would not aid in the exploration of a material issue [Israel Travel Advisory Service Inc v Israel Identity Tours Inc (7th Cir 1995) 61 F3d 1250 1254]

(2) [1123797] Undue burden A motion to compel may be denied on the ground that the discovery sought would impose an undue burden on the responding party (see FRCP

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45(c)(3)(A)) or that its benefits are outweighed by its burdens (FRCP 26(b)(2)(iii)) [CSC Holdings Inc v Redisi supra 309 F3d at 993--rejecting undue burden claim]

h [112380] Prevailing party costs award The party who prevails on a motion to compel is entitled to his or her expenses including reasonable attorney fees unless the losing party was substantially justified in making or opposing the motion (or other circumstances make such an award unjust) [FRCP 37(a)(4) H K Porter Co Inc v Goodyear Tire amp Rubber Co (6th Cir 1976) 536 F2d 1115 1124-1125]

(1) [112381] Wilfulness not required An award of expenses does not require a showing of wilfulness or improper intent rather the standard is whether there was substantial justification for the losing partys conduct [FRCP 37(a)(4) Reygo Pac Corp v Johnston Pump Co (9th Cir 1982) 680 F2d 647 649 Sheppard v River Valley Fitness One LP (1st Cir 2005) 428 F3d 1 11--Whatever his motivation (counsels) arguments for the order simply taken at face value were so unjustified that he must personally bear the costs of opposing it (parentheses added)]

(2) [112382] Burden on losing party Thus the burden is on the losing party affirmatively to demonstrate that its position was substantially justified [FRCP 37(a)(4) Adv Comm Notes (1970)]

(3) [112383] Notice and hearing re expense awards The losing party must have had notice and an opportunity to be heard before a court will award expenses to the prevailing party on a motion to compel [FRCP 37(a)(4) Falstaff Brewing Corp v Miller Brewing Co (9th Cir 1983) 702 F2d 770 784 fn 11 Hayden Store Inc v Brode (7th Cir 1974) 508 F2d 895 897]In some courts the motion for attorney fees and expenses must be filed separately from any other motion [ND CA Rule 37-3]

(4) [112384] Award against party or attorney (or both) The court may award expenses against the losing party and the losing partys attorney (FRCP 37(a)(4)) However the degree of involvement of each is considered eg if the discovery abuse may be limited to tactics carried out by the attorney an award solely against the attorney is appropriate [Carlucci v Piper Aircraft Corp (11th Cir 1985) 775 F2d 1440 see discussion of freely-selected-agent rule at para 112441] Cross-refer See further discussion in connection with Rule 11 sanctions at para 17563 ff

(5) [112385] Apportionment of expenses If the motion is granted in part and denied in part the court may apportion the reasonable expenses incurred among the parties in a just manner [FRCP 37(a)(4)(C)]

(6) [112386] Comment While courts are free to award expenses Rule 37(a)(4) is really aimed at curbing discovery abuses and preventing waste of judicial time when there is no genuine dispute Thus where there is legitimate difference of opinion an award of expenses is usually improper

i [112387] Postruling protective orders If the motion to compel is denied in whole or in part the court may issue a Rule 26(c) protective order even though no such order has been requested [FRCP 37(a)(4)(C) and see para 111060 ff]

j [112388] Appellate review Discovery orders that affect only the parties to the action are deemed interlocutory in nature and hence no appeal lies until after final judgment (see para 1136) (In exceptional cases immediate review may be sought by application for writ of mandamus see para 1139)

(1) [112389] Exception--collateral order doctrine An immediate appeal lies from a nonfinal order that

--conclusively determines the disputed question --resolves an important issue that is completely separate from the merits of the dispute and --is effectively unreviewable on appeal from a final judgment [See Cohen v Beneficial Indus

Loan Corp (1949) 337 US 541 546 69 SCt 1221 1225 In re Ford Motor Co (3rd Cir 1997) 110 F3d 954 957]

(a) [112390] Orders denying privilege claims Discovery orders requiring production of allegedly privileged material are held immediately appealable under this doctrine Existence of the privilege is an issue unrelated to the merits and production of the

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privileged material would make the order effectively unreviewable [In re Ford Motor Co supra 110 F3d at 956]

(b) [112391] Orders against nonparty A discovery order directed against a nonparty is immediately appealable under the collateral order doctrine because a nonparty has no appellate remedy at the end of the litigation [Dellwood Farms Inc v Cargill Inc (7th Cir 1997) 128 F3d 1122 1125 In re Flat Glass Antitrust Litig (3rd Cir 2002) 288 F3d 83 87-88--nonparty must be cited for contempt to obtain appellate review]

3 [112392] Effect of Failure to Bring Motion Failure to bring a motion to compel waives the right to challenge objections raised to the discovery request Ie the discovering party cannot at the time of trial claim the responding partys objections were invalid or not made in good faith [Helfand v Gerson (9th Cir 1997) 105 F3d 530 536 (citing text)--by failure to bring motion to compel plaintiffs waived objection to defendants assertion of privilege]

Chapter 11 Disclosure And Discovery Part V Remedies And Sanctions

C Sanctions For Failure To Comply With Court Order

1 [112401] Court Order Prerequisitea [112402] Exception--partys failure to appear or respond(1) [112403] Objectionable request no excuse(2) [112404] No requirement of willfulnessb [112405] Compare--sanctions under courts inherent power(1) Application2 [112410] Sanctions Against Parties a [112411] Issue establishmentb [112412] Evidenceissue preclusion(1) [112413] Factors considered(2) [112414] Compare--sanctions at trialc [112415] Striking pleadings dismissal or default(1) [112416] Limited to extreme circumstances(a) [1124165] Higher standard of proof(2) [112417] Scope of dismissal for violation of discovery orders(a) [112418] Discovery violations by less than all plaintiffs(b) [112419] Discovery sought by less than all defendants (3) [112420] Willfulness or bad faith(a) [112421] Findings required(b) [112422] Conduct in related proceedings considered(c) [112423] Counsels disobedience not enough(4) [112424] Relevant factors(a) [112425] Prior warnings(b) [112426] Deterrent to other parties(c) [112427] Partys vs attorneys culpability(d) [112428] Prejudice and availability of lesser sanctions as key factors1) [1124281] Considerations re prejudice 2) [1124282] Considerations re lesser sanctions(e) [112429] Pro per status(5) [112430] Comment(6) [112431] Res judicata effect of dismissal sanctiond [112432] Contempt sanction against parties(1) [112433] Fines

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(a) [1124331] Compare--fines for criminal contempt(b) [112434] Compare--monetary sanctions(2) [112435] Compare--refusal to submit to mental or physical exam not a contempt(3) [112436] Compare--claiming Fifth Amendment privilege not a contempt(4) [112437] Findings required for contempt adjudication(5) [112438] Appellate reviewe [1124385] Other sanctions(1) [1124386] Informing jury of partys discovery violationsf [112439] Expenses and fees(1) [112440] Scope of expenses(2) [112441] Award against client for attorney decisions(3) [112442] Sanctions against counsel(a) [112443] Joint or several liability (b) [112444] Bad faith not required(4) [112445] Amount of award(5) [112446] Fee award to pro se litigantg Procedural considerations re sanctions(1) [112447] Timing of motion(2) [112448] Separate motion required=gt [112449] PRACTICE POINTER(3) [112450] Notice to client and counsel(4) [112451] Supporting papers=gt [112452] PRACTICE POINTERh [112453] Court discretion(1) [1124535] Limitation--fair procedures requiredi [112454] No immediate appeal3 [112460] Sanctions Against Nonparties (Contempt)a [112461] Nonpartys right to hearingb [112462] Immediate appealc [112463] Criminal and civil contempt4 [112464] Sanctions Against United Statesa [112465] View allowing sanctionsb [112466] View prohibiting sanctions

[112400] Much broader sanctions may be imposed against a person or party for failure to obey a prior court order compelling discovery [FRCP 37(b)(2) United States v Kahaluu Const Co (9th Cir 1988) 857 F2d 600 602]

1 [112401] Court Order Prerequisite The sanctions discussed below (para 112410 ff) are not available absent a prior valid order compelling discovery under Rule 37(a) [Shepherd v American Broadcasting Cos Inc (DC Cir 1995) 62 F3d 1469 1474 Unigard Security Ins Co v Lakewood Eng amp Mfg Corp (9th Cir 1992) 982 F2d 363 367]Although a written order is usually involved sanctions may also be imposed for failure to comply with an oral discovery order [Bhan v NME Hospitals Inc (9th Cir 1991) 929 F2d 1404 1415]

a [112402] Exception--partys failure to appear or respond A party who fails to appear for deposition or to respond at all to interrogatories or a request for inspection is subject to sanctions even in the absence of a prior order [FRCP 37(d) Hilao v Estate of Marcos (9th Cir 1996) 103 F3d 762 764- 765]

(1) [112403] Objectionable request no excuse Unless a protective order has been applied for the fact that the discovery request is objectionable does not excuse the failure to appear or respond (The objection should have been raised in the response) [FRCP 37(d) see Badalamenti v Dunhams Inc (Fed Cir 1990) 896 F2d 1359 1362--sanctions for failure to respond inappropriate where objections filed]

(2) [112404] No requirement of willfulness Moreover there is no requirement that failure to appear or respond be willful before sanctions (except dismissal see para 112420) may be imposed [Lew v Kona Hosp (9th Cir 1985) 754 F2d 1420 1426 Adv Comm Notes (1970)]

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b [112405] Compare--sanctions under courts inherent power Even without a prior discovery order (required for sanctions under some provisions of Rule 37) discovery misconduct can be punished under the courts inherent powers to manage its affairs (see para 17690) [Residential Funding Corp v DeGeorge Finl Corp (2nd Cir 2002) 306 F3d 99 106-107 Unigard Security Ins Co v Lakewood Eng amp Mfg Corp (9th Cir 1992) 982 F2d 363 368--sanctions for suppression of evidence see para 17690 ff]

(1) Application bull [112406] Where the discovery violation is failure to produce requested evidence the

district court may either --delay the start of a trial (at the expense of the party that breached its obligation) --declare a mistrial if trial has already commenced or --proceed with a trial and give an adverse inference instruction [Residential Funding Corp v

DeGeorge Finl Corp supra 306 F3d at 107]An adverse inference instruction is proper even if the discovery violation was merely negligent rather than intentional [Residential Funding Corp v DeGeorge Finl Corp supra 306 F3d at 107][112407-2409] Reserved

2 [112410] Sanctions Against Parties Sanctions are appropriate if a party or someone under the partys control is guilty of any of the following misconduct [See Wanderer v Johnston (9th Cir 1990) 910 F2d 652 657-- sanctions against corporation for misconduct by managing officer]

bull fails to be sworn or answer questions at deposition after the court orders it to do so bull fails to answer interrogatories after court order bull fails to produce documents or things as ordered by the court bull otherwise disobeys a discovery order (eg re scheduling) [FRCP 37(b)(2) 26(f)]

In such cases the court may make such orders in regard to the failure as are just (FRCP 37(b)(2)) including the following

a [112411] Issue establishment For failure to obey a discovery order the court may order the matters at issue (or any other designated facts) established for purposes of the action [FRCP 37(b)(2)(A) Insurance Corp of Ireland Ltd v Compagnie des Bauxites de Guinee (1982) 456 US 694 695 102 SCt 2099 2100 see General Ins Co of America v Eastern Consolidated Utilities Inc (3rd Cir 1997) 126 F3d 215 220-221 (dictum)-- order that designated facts be taken as true must relate to the claim or defense with respect to which discovery is being sought]

b [112412] Evidenceissue preclusion For failure to obey a discovery order the court may order the disobedient party precluded from supporting or opposing designated claims or defenses or from introducing designated matters into evidence [FRCP 37(b)(2)(B) Von Brimer v Whirlpool Corp (9th Cir 1976) 536 F2d 838 844 Reilly v Natwest Markets Group Inc (2nd Cir 1999) 181 F3d 253 269--failure to comply with order requiring corporate representatives to be produced for deposition warranted exclusion of their testimony at trial]

(1) [112413] Factors considered In assessing whether to preclude a witness testimony courts consider

bull the partys explanation for failure to comply with the discovery order bull the importance of the testimony of the precluded witness bull any prejudice suffered by the opposing party as a result of having to prepare to meet the

new testimony and bull the possibility of a continuance [Reilly v Natwest Markets Group Inc supra 181 F3d at

269 Amersham Pharmacia Biotech Inc v Perkin-Elmer Corp (ND CA 2000) 190 FRD 644 648--exclusion sanction generally improper if no undue prejudice to the other side]

(2) [112414] Compare--sanctions at trial Where the discovery misconduct is the nonproduction of evidence a district court has discretion to

--delay the start of a trial at the expense of the party that breached its obligation --declare a mistrial if trial has already commenced or --to proceed with a trial and give an adverse inference instruction to the jury [Residential

Funding Corp v DeGeorge Finl Corp (2nd Cir 2002) 306 F3d 99 107]

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c [112415] Striking pleadings dismissal or default The court may sanction the disobedient party by striking pleadings staying further proceedings pending compliance or terminating the action by default or dismissal [FRCP 37(b)(2)(C) United States v Kahaluu Const Co (9th Cir 1998) 857 F2d 600 602 Toth v Trans World Airlines Inc (9th Cir 1988) 862 F2d 1381 1385 Chrysler Corp v Carey (8th Cir 1999) 186 F3d 1016 1022--striking partys pleadings appropriate where party had shown blatant disregard of the courts orders and the discovery rules by engaging in pattern of presenting false and misleading answers and testimony under oath]

(1) [112416] Limited to extreme circumstances Since dismissal and default are such drastic remedies they may be ordered only in extreme circumstances--ie willful disobedience or bad faith [In re Exxon Valdez (9th Cir 1996) 102 F3d 429 432 and see FDIC v Conner (5th Cir 1994) 20 F3d 1376 1380-- remedy of last resort] [1124161-24164] Reserved

(a) [1124165] Higher standard of proof Because of the severity of the penalty some courts require clear and convincing evidence (more than a mere preponderance) that the violations were willful or in bad faith [Maynard v Nygren (7th Cir 2003) 332 F3d 462 468]

(2) [112417] Scope of dismissal for violation of discovery orders For willful violations of discovery orders the court has discretion to dismiss the entire action or any part thereof (eg particular claims by or against particular parties) [FRCP 37(b)(2)(C)] Although case-dispositive sanctions are usually reserved for repeated violations of court orders even a single willful violation may suffice depending on the circumstances [Valley Engineers Inc v Electric Eng Co (9th Cir 1998) 158 F3d 1051 1056--dishonest concealment of critical evidence justified dismissal]

(a) [112418] Discovery violations by less than all plaintiffs Where there are several plaintiffs the court has discretion to dismiss the entire action including claims by coplaintiffs not currently in default Reason The other plaintiffs discovery violations may have prejudiced the defendants ability to prepare for trial [Payne v Exxon Corp (9th Cir 1997) 121 F3d 503 509]

(b) [112419] Discovery sought by less than all defendants Nor is the dismissal sanction limited to claims against the defendant who propounded the discovery The court has discretion to order dismissal against all defendants prejudiced by plaintiffs discovery violations (eg where one was relying on discovery efforts undertaken by the other) [Payne v Exxon Corp supra 121 F3d at 510]

(3) [112420] Willfulness or bad faith All that is required to demonstrate willfulness or bad faith is disobedient conduct not shown to be outside the control of the litigant [Henry v Gill Industries Inc (9th Cir 1993) 983 F2d 943 948 (emphasis added)--delay and failure to appear resulting from party being out of town and misunderstandings with own counsel are not outside partys control Smith v Smith (5th Cir 1998) 145 F3d 335 344]

(a) [112421] Findings required An explicit finding of willful noncompliance is necessary It will not be inferred from findings that the noncompliance was unexcused or unjustified [In re Rains (10th Cir 1991) 946 F2d 731 733]

(b) [112422] Conduct in related proceedings considered In making its bad faith determination the court is entitled to rely on its understanding of the parties motivations It is therefore proper to consider a partys dilatory and obstructive conduct in a related case [Smith v Smith supra 145 F3d at 344]

(c) [112423] Counsels disobedience not enough However an attorneys intentional violation of a discovery order does not warrant dismissal of the clients case unless the opposing party shows it was prejudiced thereby [See Coleman v American Red Cross (6th Cir 1994) 23 F3d 1091 1095--violation of protective order by plaintiffs lawyer did not justify dismissal of action see Harmon v CSX Transportation Inc (6th Cir 1997) 110 F3d 364 368-- dismissal upheld where counsels neglect in failing to respond to interrogatories prejudiced defendants trial preparation]

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(4) [112424] Relevant factors Once the court finds that discovery violations are due to willfulness bad faith or fault of the party it weighs the following five factors in determining whether to impose a terminating sanction

bull public interest in expeditious resolution of litigation bull the courts need to manage its docket bull prejudice to other parties from the discovery violations (which includes inquiry into

materiality of the evidence withheld) bull public policy favoring disposition of cases on their merits (not a controlling factor where

other factors favor dismissal) and bull whether less drastic sanctions are available and would provide effective deterrence for the

particular violation [Hyde amp Drath v Baker (9th Cir 1994) 24 F3d 1162 1166-1167 FDIC v Conner (5th Cir 1994) 20 F3d 1376 1380-1381]The first two factors favor terminating sanctions for violating a court order while the fourth cuts against such sanctions Thus the outcome usually depends on the third and fifth factors (see para 112428) [Computer Task Group Inc v Brotby (9th Cir 2004) 364 F3d 1112 1115]

(a) [112425] Prior warnings Another important factor is whether the court had warned the offending party that further discovery violations would result in dismissal or default [See Sieck v Russo (2nd Cir 1989) 869 F2d 131 134]Some courts require a judicial warning before a dismissal or default can be imposed as a discovery sanction while others make it discretionary [See United States v Kahaluu Const Co (9th Cir 1988) 857 F2d 600 605-- warning required FDIC v Daily (10th Cir 1992) 973 F2d 1525 1532--warning not required Valley Engineers Inc v Electric Eng Co (9th Cir 1998) 158 F3d 1051 1057--warning not required where pattern of deception and discovery abuse made fair trial impossible]

(b) [112426] Deterrent to other parties In cases with numerous parties a dismissal sanction imposed against parties who fail to respond to discovery may serve as a deterrent to the other parties [In re Exxon Valdez (9th Cir 1996) 102 F3d 429 433--involving scores of lawsuits and thousands of claimants]

(c) [112427] Partys vs attorneys culpability Courts are particularly reluctant to dismiss a case with prejudice for attorney misconduct where the client (plaintiff) is not culpable personally Even so dismissal may be appropriate where no other sanction would cure the harm the attorneys misconduct has caused the defendant [Gratton v Great American Communications (11th Cir 1999) 178 F3d 1373 1375]

(d) [112428] Prejudice and availability of lesser sanctions as key factors The amount of prejudice resulting from the discovery violations and the availability of less drastic sanctions are said to be key factors [Wanderer v Johnston (9th Cir 1990) 910 F2d 652 656 Chrysler Corp v Carey (8th Cir 1999) 186 F3d 1016 1019--prejudice to other party always required United States v $49000 Currency (5th Cir 2003) 330 F3d 371 376--dismissal should be employed only where lesser sanction would not substantially achieve the desired effect] Some cases uphold default or dismissal where discovery violations have prejudiced the opposing party without considering lesser sanctions [United States v Di Mucci (7th Cir 1989) 879 F2d 1488 1494-1495 Henry v Gill Industries Inc (9th Cir 1993) 983 F2d 943 947--delay due to discovery misconduct prejudiced defense because codefendant and key witness rendered unable to assist in defense by brain tumor]

1) [1124281] Considerations re prejudice Any substantial delay in complying with discovery orders may be held prejudicial (F)ailure to produce documents as ordered is considered sufficient prejudice [Computer Task Group Inc v Brotby (9th Cir 2004) 364 F3d 1112 1116]

2) [1124282] Considerations re lesser sanctions Before imposing terminating sanctions the court should explicitly discuss on the record the alternative of lesser sanctions and explain why it would be inappropriate [Computer Task Group Inc v Brotby supra 364 F3d at 1116]

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(e) [112429] Pro per status Courts may be more lenient with pro se litigants but intentional disregard of discovery rules may nevertheless result in default or dismissal [See Lindstedt v City of Granby (8th Cir 2000) 238 F3d 933 937]

(5) [112430] Comment Courts usually hesitate to impose outcome-determinative sanctions for initial disobedience to discovery orders Dismissal or default is usually imposed as a last resort after repeated and willful failure to make discovery and after lesser sanctions have failed to serve the purpose [National Hockey League v Metropolitan Hockey Club Inc (1976) 427 US 639 642-643 96 SCt 2778 2780-2781 and see Poulis v State Farm Fire amp Cas Co (3rd Cir 1984) 747 F2d 863 United Artists Corp v La Cage Aux Folles Inc (9th Cir 1985) 771 F2d 1265 1271]But which sanction is appropriate under the particular circumstances is within the courts discretion ie it need not impose the least onerous sanction [Chrysler Corp v Carey (8th Cir 1999) 186 F3d 1016 1022]

(6) [112431] Res judicata effect of dismissal sanction Unless the court orders otherwise (below) a dismissal under FRCP 37(b)(2) operates as an adjudication upon the merits Thus another lawsuit on the same claim is barred by res judicata [Wyle v RJ Reynolds Industries Inc (9th Cir 1983) 709 F2d 585 592 Bierman v Tampa Elec Co (5th Cir 1979) 604 F2d 929 930- 931]However the court has discretion to dismiss without prejudice in order to avoid the bar of res judicata [See ONeill v AGWI Lines (5th Cir 1996) 74 F3d 93 95]

d [112432] Contempt sanction against parties Courts have additional authority to hold parties in contempt for failure to obey court orders [FRCP 37(b)(2)(D) see Richmark Corp v Timber Falling Consultants (9th Cir 1992) 959 F2d 1468 1479-1480]A civil contempt sanction is coercive designed to force the contemnor to comply with an order of the court and must include a purge condition (see para 13233) [Cunningham v Hamilton County Ohio (1999) 527 US 198 207 119 SCt 1915 1921]

(1) [112433] Fines Where plaintiff has presented proof of loss due to defendants contumacy defendant may be ordered to pay fines to plaintiff as a coercive remedy (eg $10000 a day until defendant performs) The fine must correspond to some degree with the amount of damages suffered by plaintiff Absent such proof a fine may be made payable to the court (criminal contempt) but not to plaintiff [See King v Allied Vision Ltd (2d Cir 1995) 65 F3d 1051 1062]

(a) [1124331] Compare--fines for criminal contempt If a partys failure to comply with discovery orders is criminally contumacious the court may (in addition to other sanctions) impose fines payable to the court A criminal contempt sanction is punitive designed to punish the affront to the court [Pereira v Narragansett Fishing Corp (D MA 1991) 135 FRD 24 27]Cross-refer Other differences between civil and criminal contempt are discussed in detail at para 13231 ff

(b) [112434] Compare--monetary sanctions A contempt sanction is not appropriate however to impose monetary sanctions on a party or attorney for discovery violations Monetary sanctions are designed to deter harassment and delay rather than to compel compliance with a court order and order imposing monetary sanctions has no prospective effect [See Cunningham v Hamilton County Ohio supra 527 US at 207 119 SCt at 1921]

(2) [112435] Compare--refusal to submit to mental or physical exam not a contempt FRCP 37(b)(2)(D) expressly provides that a partys failure to obey an order to submit to a physical or mental examination shall not be treated as a contempt However other Rule 37(b) sanctions for disobedience to a court order can be imposed (eg monetary evidence or terminating sanctions) [See Adv Comm Notes on 1970 Amendments to FRCP 37(b)]

(3) [112436] Compare--claiming Fifth Amendment privilege not a contempt A party may properly assert his or her Fifth Amendment privilege against self-incrimination in response to a discovery request This may adversely affect the outcome of the lawsuit by limiting the partys proof but is not ground for contempt if the privilege claim is well-

13

founded [Campbell v Gerrans (9th Cir 1979) 592 F2d 1054 1057 and see Wehling v CBS (5th Cir 1979) 608 F2d 1084 1087-1088 see also para 11700 ff]

(4) [112437] Findings required for contempt adjudication To support a judgment of contempt the district court must find based on clear and convincing evidence the following

bull that the party violated the order bull that the violation did not constitute substantial compliance with the order and bull that the violation was not based on a good faith and reasonable interpretation of the order

[In re Dual-Deck Video Cassette Recorder Antitrust Litig (9th Cir 1993) 10 F3d 693 695]

(5) [112438] Appellate review If a party complies with a contempt order that is coercive in nature any appeal of the order becomes moot [Richmark Corp v Timber Falling Consultants (9th Cir 1992) 959 F2d 1468 1480][1124381-24384] Reserved

e [1124385] Other sanctions The court is not limited to the sanctions discussed above It may also make such orders in regard to the (violation of court order) as are just [FRCP 37(b)(2) (parentheses added)]

(1) [1124386] Informing jury of partys discovery violations In rare cases where monetary sanctions would not rectify the violation and yet dismissal or striking pleadings would be too severe the court may choose to inform the jury of a partys discovery violations The authority given by Rule 37(b) to impose more severe sanctions implies the power to impose this lesser sanction [Network Computing Services Corp v Cisco Systems Inc (D SC 2004) 223 FRD 392 399]

f [112439] Expenses and fees Reasonable expenses (including attorney fees) caused by failure to comply with discovery orders will be awarded against the disobedient parties andor their attorneys unless they demonstrate that noncompliance was substantially justified or an award is otherwise unjust [FRCP 37(b)(2)(E) and see Lew v Kona Hosp (9th Cir 1985) 754 F2d 1420 1427--no showing of willfulness required]

(1) [112440] Scope of expenses To be recoverable the expenses must have resulted from failure to obey a court order rather than efforts made to obtain the order in the first place Moreover there must be evidence of the reasonableness of the rates claimed or their relation to the prevailing rates in the community [Toth v Trans World Airlines Inc (9th Cir 1988) 862 F2d 1381 1386 Richmark Corp v Timber Falling Consultants (9th Cir 1992) 959 F2d 1468 1482--includes fees for preparing motion to compel]

(2) [112441] Award against client for attorney decisions While the court is free to award expense sanctions against the client the attorney or both there is nothing improper in awarding sanctions against the client for decisions made by the attorney [Toth v Trans World Airlines Inc supra 862 F2d at 1387 see also para 112384] Rationale The attorney is the freely selected agent of the client for this purpose [Toth v Trans World Airlines Inc supra 862 F2d at 1387]

(3) [112442] Sanctions against counsel An attorney who advises a party not to appear for deposition or not to respond to discovery requests may be ordered to pay reasonable expenses including attorney fees caused by the partys failure to make discovery [FRCP 37(d) see FDIC v Conner (5th Cir 1994) 20 F3d 1376 1382 see Worldcom Network Services Inc v Metro Access Inc (SD NY 2002) 205 FRD 136 144--sanctions imposed on counsel rather than party where noncompliance was attributable solely to counsel] To avoid sanctions the attorney must show substantial justification for the clients failure to make discovery or circumstances that make an award of expenses unjust [FRCP 37(d) see Hyde amp Drath v Baker (9th Cir 1994) 24 F3d 1162 1171]

(a) [112443] Joint or several liability Sanctions may be imposed against the attorneys separately or against the attorneys and clients jointly and severally [Hyde amp Drath v Baker supra 24 F3d at 1172]Where the order is made against the attorney alone the court may prohibit the attorney from seeking reimbursement from the client [FDIC v Conner supra 20 F3d at 1382 see also United States v Shaffer Equip Co (SD WV 1994) 158 FRD 80 88--US attorneys ordered to pay sanctions personally without seeking reimbursement from government]

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(b) [112444] Bad faith not required The attorneys need not be shown to have acted in bad faith in resisting discovery (eg by advising clients not to appear for deposition or respond) [Hyde amp Drath v Baker supra 24 F3d at 1171--sanctions based on attorneys rehashing arguments already rejected by court] On the other hand the attorneys good faith belief in grounds for refusing discovery may be a factor in determining whether imposition of sanctions would be unjust [Hyde amp Drath v Baker supra 24 F3d at 1171-1172]

(4) [112445] Amount of award The court has considerable discretion in determining the amount and form of the award [See General Signal Corp v Donallco Inc (9th Cir 1986) 787 F2d 1376 1380--identifying factors for calculating fee awards] Cross-refer Allocation of sanctions between attorney and client is discussed further in connection with Rule 11 sanctions at para 17563 ff

(5) [112446] Fee award to pro se litigant The court cannot award attorney fees to pro se litigants under Rule 37(a)(4) which is limited to reasonable expenses incurred [Pickholtz v Rainbow Technologies Inc (Fed Cir 2002) 284 F3d 1365 1377]But fees to pro se litigants are awardable under the courts inherent power (para 17690 ff) Failure to do so would place a pro se litigant at the mercy of an opponent who might engage in otherwise sanctionable conduct [Pickholtz v Rainbow Technologies Inc supra 284 F3d at 1377]

g Procedural considerations re sanctions (1) [112447] Timing of motion The sanctions motion must be made within a reasonable

time after the discovery violation [Brandt v Vulcan Inc (7th Cir 1994) 30 F3d 752 756--too late at trial]

(2) [112448] Separate motion required Some courts require that a motion for sanctions be made separately from a motion to compel further discovery [See ND CA Rule 37-3 Electro Scientific Industries Inc v General Scanning Inc (ND CA 1997) 175 FRD 539 547--counsel may be sanctioned for seeking sanctions in opposition brief] However most courts permit joinder of a sanctions request as part of a motion to compel (see para 112352 ff)

=gt [112449] PRACTICE POINTER Where permitted joining a motion to compel with a sanctions request is usually a good idea because the court is more likely to order discovery than to grant a terminating sanction (dismissal default etc) and ordinarily will make an award of attorney fees and expenses If you ask for sanctions later you may not get them

(3) [112450] Notice to client and counsel A motion for sanctions under Rule 37 even one which names only a party places both that party and its attorney on notice the court may assess sanctions against either or both (T)he movant merely provides the court with the double option of holding responsible either the opponent or the attorney either under the motion or sua sponte [Devaney v Continental American Ins Co (11th Cir 1993) 989 F2d 1154 1160]

(4) [112451] Supporting papers An application for an award of fees and expenses should disclose the nature of the services rendered the amount of attorney time spent and the rates at which the time was billed to the client [See Henry v Gill Industries Inc (9th Cir 1993) 983 F2d 943 946]A fee award may be based on the affidavits of counsel so long as they are sufficiently detailed to enable the court to consider all factors necessary in setting fees Where the legal bills are voluminous an attorney may properly summarize the records so long as the originals are available for examination or copying (see FRE 1006) [See Henry v Gill Industries Inc supra 983 F2d at 946]

=gt [112452] PRACTICE POINTER If you plan to submit billing statements as part of a fees application be sure to eliminate any privileged information Alternatively request permission to submit such information in camera to the court Also include enough facts about your experience and customary rates to enable the court to find that the hourly rate requested is reasonable Failure to do so may result in denial of monetary sanctions that otherwise would have been awarded

15

h [112453] Court discretion The imposition of sanctions under Rule 37 for discovery abuse is generally a matter within the trial courts discretion [Coletti v Cudd Pressure Control (10th Cir 1999) 165 F3d 767 777-- sanctions orders reviewable only for abuse of discretion] [1124531-24534] Reserved

(1) [1124535] Limitation--fair procedures required Arbitrary procedures may render imposition of sanctions an abuse of discretion eg sampling a few documents out of many whose discoverability is in dispute and inferring bad faith from counsels disagreement with the courts rulings on those few documents [See American Natl Bank amp Trust Co of Chicago v Equitable Life Assur Soc of US (7th Cir 2005) 406 F3d 867 878-879]

i [112454] No immediate appeal Sanctions orders other than contempt generally are not immediately appealable An appeal lies only after entry of a final judgment in the case This applies both to sanctions against a party and to sanctions against a partys attorney and it is immaterial whether the attorney continues to represent the client [Cunningham v Hamilton County Ohio (1999) 527 US 198 203 119 SCt 1915 1919 see discussion at para 17600 ff] [112455-2459] Reserved

3 [112460] Sanctions Against Nonparties (Contempt) The only sanction available against nonparties for failure to comply with deposition subpoenas is a contempt citation There is no authority for any other sanction (except reimbursement of expenses on a motion to compel para 112315 ff) [FRCP 37(a)(4) 45(e) see General Ins Co of America v Eastern Consolidated Utilities Inc (3rd Cir 1997) 126 F3d 215 220--nonparty contemnor ordered to pay $500 for expenses and attorney fees but court had no power to bind nonparty to certain facts (so as to bar future claims by that party) see VISX Inc v Nidek Co (ND CA 2002) 208 FRD 615 616 (citing text)]

a [112461] Nonpartys right to hearing If a contempt sanction is sought the nonparty has a right to be heard in a meaningful manner [Fisher v Marubeni Cotton Corp (8th Cir 1975) 526 F2d 1338 1342]

b [112462] Immediate appeal An order for contempt or expenses against a nonparty is immediately appealable [In re Murphy (8th Cir 1977) 560 F2d 326 Dove v Atlantic Capital Corp (2nd Cir 1992) 963 F2d 15 17]

c [112463] Criminal and civil contempt A contempt charge against a nonparty may be criminal or civil in nature [Falstaff Brewing Corp v Miller Brewing Co (9th Cir 1983) 702 F2d 770 772] (A criminal contempt charge is punitive whereas civil contempt is coercive and must always be accompanied by a purge condition see para 112432) Willfulness is an essential element of criminal contempt but not of civil contempt [Waste Conversion Inc v Rollins Environmental Services (NJ) Inc (3rd Cir 1990) 893 F2d 605 612--mere failure to comply with subpoena may support civil but not criminal contempt] Cross-refer See further discussion at para 13231 ff

4 [112464] Sanctions Against United States There is split of authority on whether monetary sanctions (eg attorney fees) may be imposed on the United States when it is a party to the litigation

a [112465] View allowing sanctions Some courts including the Ninth Circuit permit sanctions against the United States (W)hen the United States comes into court as a party in a civil suit it is subject to the Federal Rules of Civil Procedure as any other litigant [See Mattingly v United States (9th Cir 1991) 939 F2d 816 818 MA Mortenson Co v United States (Fed Cir 1993) 996 F2d 1177 1181 see also United States v Sumitomo Marine amp Fire Ins Co Ltd (9th Cir 1980) 617 F2d 1365 1370-1371--monetary sanction may be assessed against government counsel personally]

b [112466] View prohibiting sanctions Other courts hold attorney fees cannot be awarded as a discovery sanction against the United States [EEOC v Kenosha Unified School Dist No 1 (7th Cir 1980) 620 F2d 1220 1226-1227 In re Attorney General of United States (2nd Cir 1979) 596 F2d 58 66]

Chapter 11 Disclosure And Discovery

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Part V Remedies And Sanctions

D Sanctions For Violation Of Attorneys Certificate Of Merit

[112470] All disclosures and discovery documents must be signed by at least one attorney of record (or by an unrepresented party) The signature certifies that a disclosure document is complete and that a discovery document has factual and legal merit and is not interposed for improper purposes [FRCP 26(g)(1)(2) see para 111210 ff]

Violation of this certificate exposes the attorney andor the party to an appropriate sanction which may include an award of attorney fees and expenses incurred because of the violation [FRCP 26(g) (3)]

Cross-refer Sanctions for violation of the attorneys certificate of merit under FRCP 11 (a counterpart to FRCP 26(g)) is discussed in detail at para 1765 ff

17