2.7 Rule 4:12

• Library: Attorney Fees and Sanctions - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

2.7 Rule 4:12

2.701 In General. Rule 4:12 of the Rules of the Virginia Supreme Court provides for sanctions for failure to comply with discovery rules and includes sanctions for failure to comply with an order, and after an order is entered, the failure to answer a question during a deposition may be considered contempt of the court. ¹⁴⁴ If a party fails to obey an order to provide or permit discovery, a court may enter an order that is just in regard to the failures, including the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure

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to obey any orders except an order to submit to a physical or mental examination;

(E) Where a party has failed to comply with an order under Rule 4:10(a) requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for ex-amination. ¹⁴⁵

A party or attorney whose conduct necessitated a motion to compel or who filed a motion may be ordered to pay the reasonable expenses incurred in having the court consider the motion unless the opposition or filing of the motion was substantially justified or other circumstances make an award unjust. ¹⁴⁶

2.702 Violation of Court Orders. Under certain provisions, before sanctions may be issued a court order must be violated. In Brown v. Black, ¹⁴⁷ a discovery sanction of dismissing a motion for judgment was not authorized under Rule 4:12(b)(2)(A), (B), and (C) absent a failure to comply with a court order to provide or permit discovery.

In Kawar v. Bouk, ¹⁴⁸ following Brown, no sanctions were levied despite the litigants' failure to produce documents sought where no court order was previously entered. In Dixon v. Dixon, ¹⁴⁹ commissioner erred in granting sanctions before a court order had been entered compelling production of documents.

In Kapur v. Kapur, ¹⁵⁰ the court reasoned that because under the Virginia Supreme Court's decision in Brown v. Black a party's failure to obey

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an order compelling discovery is a prerequisite for the imposition of sanctions under paragraphs (A), (B), and (C) of Rule 4:12(b)(2) (failure to comply with a court order), the imposition of sanctions under Rule 4:12(d) (failure to attend deposition, answer interrogatories, respond to inspection request) was likewise conditioned upon a failure to comply with such an order since the remedies under subsection (d) are those designated in Rule 4:12.

"Rule 4:12 gives the trial court broad discretion in determining what sanctions, if any, will be imposed upon a litigant who fails to respond timely to discovery." ¹⁵¹

However, in Brown, a discovery sanction dismissing a motion for judgment was not authorized under Rule 4:12(b)(2)(A), (B), and (C) absent a failure to comply with a court order to provide or permit discovery. ¹⁵²

2.703 Prejudice Not Required. Nothing in the language of Rule 4:12 or case law demands that a trial court first determine whether a party's failure to obey an order has caused another party to suffer prejudice before it may impose a sanction. ¹⁵³

2.704 Appellate Review. Appellate courts "accord deference to the decision of the trial court . . . and will reverse that decision only if the court abused its discretion." ¹⁵⁴ However, an appellate court should not simply rubber stamp every discretionary decision of a trial court. ¹⁵⁵

2.705 Cases Where Sanctions Warranted.

A. Default Judgment. Where a party did not provide a corporate designee for a deposition despite an order to that effect, and the opposing party was denied the opportunity to explore the basis of the denials in the grounds of defense and answers to interrogatories, judgment by default under Rule 4:12 was not an abuse of discretion. ¹⁵⁶

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Where a litigant wholly failed to comply with the court's orders regarding discovery obligations, which had an irreversible impact on the course of litigation, dismissal was the appropriate remedy under Rule 4:12. ¹⁵⁷

Where plaintiff interfered with a witness's deposition, altered and destroyed documents, and refused to allow witnesses to be deposed, dismissal of the plaintiff's amended motion for judgment was an appropriate sanction under Rule 4:12. ¹⁵⁸ A case was dismissed under Rule 4:12 due to the plaintiff's complete failure to adequately respond to discovery after being ordered to do so. ¹⁵⁹

Dismissal was appropriate where the plaintiff did not comply with discovery orders, orders regarding experts, or pretrial orders. ¹⁶⁰ Dismissal was also appropriate where a litigant failed to provide expert discovery after being ordered to do so. ¹⁶¹

B. Exclusion of Testimony or Evidence. Exclusion of an expert witness was proper after out-of-state counsel did not obey the court's pretrial order regarding supplementing the expert designation and consistently disobeyed other court rules. ¹⁶²

Court did not abuse its discretion under Rule 4:12 by not allowing a mother to introduce into evidence certain exhibits that she failed to disclose during discovery. ¹⁶³

The Court of Appeals summarily affirmed the trial court's sanctions under Rule 4:12 after the husband failed to comply with several motions to compel discovery of financial information and to be deposed. As a sanction, the court precluded the husband from introducing any evidence to oppose the wife's claims for equitable distribution and an award of attorney fees and costs. ¹⁶⁴

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Where the husband failed to answer interrogatories or produce requested documents relevant to equitable distribution after being ordered to do so, the husband was precluded from testifying at the hearing as a sanction under Rule 4:12(b). ¹⁶⁵

Where the defendant lost the critical evidence of a Pap smear in a medical malpractice case, under Rule 4:12, the defendant was precluded from referencing the Pap smear test at trial. ¹⁶⁶ The defendant was barred from denying an issue in light of a key letter produced more than two and a half years after it should have been produced in discovery. ¹⁶⁷ Expert witnesses have been excluded where the litigant violated the duty to supplement and the duty to timely respond to disclosure regarding an expert. ¹⁶⁸

C. Attorney Fees and Costs. Attorney fees and costs were awarded where counsel violated Rule 4:12 by omitting relevant email from the privilege log submitted to the court and by failing to submit the email for an in camera...