Woodland Hills Personal Injury Lawyer Barry P. Goldberg has noticed a shift in litigation attorneys’ attitudes towards discovery in court. Due to under-funded Superior Courts, it is more and more difficult to enforce discovery. Therefore, a “new breed” of litigator is growing that is trying to game the otherwise self-executing discovery process. When they eventually get caught, I expect to see more and more termination sanctions. This is the “nuclear bomb” in a case wherein a party can win his or her case because the other side is attempting to avoid discovery in bad faith.
For the past 20 years, in court litigators have progressively become more cooperative in producing self-executing discovery. It would appear that the judges forced this result by punishing recalcitrant litigators and their clients who tried to avoid and obscure the discovery process. Part of this punishment was the “terminating sanction.” Most litigators got the message and began an era of cooperation because facing a busy, over worked judge for routine discovery matters usually did not go well for anybody. In return, judges have become lenient on issuing monetary sanctions and dropping a “nuclear bomb.”
Unfortunately, enforcing discovery in the Los Angeles Superior Courts these days has become next to impossible. Due to underfunding, obtaining a hearing date on a discovery matter can take up to 4 to 5 months! Cases can be won or lost in that time period. Then, parties can give vague and barely useful responses and it will take another 4 to 5 months to resolve the matter. Then, the monetary sanctions are slight. Given this “lack of teeth,” a new breed of litigator has arisen that basically disregards the discovery statutes because nothing bad will ever happen.
We are anticipating a new shift as the judges start to become aware of the blatant disregard for the discovery system and get fed up again. If you play the system, be prepared to face a terminating sanction.
“The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should ‘“attempt to tailor the sanction to the harm caused by the withheld discovery.”’ [Citation.]” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Misconduct of a party’s attorney can also serve as grounds for terminating sanctions because, it is the general rule that a party represented by counsel is bound by the acts of that attorney. (Bernstein v. Allstate Insurance Co., supra, 119 Cal.App.3d at 451.) “‘A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’ [Citation.]” (Doppes v. Bentley Motors, Inc. at p. 992, fn. omitted.)
Beware when there are several discovery orders, verbal warnings from the court, and monetary sanctions imposed. A court could easily find that a party “continuously” evaded discovery obligations. (See, Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 [trial court is justified in imposing terminating sanctions when violation is “‘willful, preceded by history of abuse,’” and less severe sanctions have proven ineffective].)
It is important that your attorney be an effective advocate. However, avoiding otherwise self-executing discovery could backfire. Subjecting a client to a terminating sanction is neither effective advocacy nor in the best interests of a client.