Chapter 13 - § 13.9 • NON-MONETARY SANCTIONS AVAILABLE

• Jurisdiction: Colorado

§ 13.9 • NON-MONETARY SANCTIONS AVAILABLE

In addition to the ultimate sanction of dismissal of a case, or the lesser sanction of payment of attorney fees and costs, the courts are authorized to consider other forms of sanction for discovery or disclosure abuse.

§ 13.9.1—Issue and Evidence Preclusion

The preclusion of evidence may well sound the death knell for a case and, in practical terms, constitute a dismissal. There are numerous examples of this discussed throughout this chapter. Importantly, however, the preclusion of evidence is not always dispositive and may be considered by the trial court as an alternative sanction to dismissal.

When considering whether to sanction a party by issue or claim preclusion, Ehrenhaus v. Reynolds directs the trial court to impose a sanction that is both just and specifically tailored to the discovery violation. Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). After applying the Ehrenhaus factors, the trial court in Thunder Mt. Custom Cycles, Inc. v. Thiessen, 2008 U.S. Dist. LEXIS 17142 (D. Colo. March 5, 2008), concluded that while the wrongful conduct was indeed demonstrative of "a deplorable willingness to ignore discovery obligations and this court's orders," the sanction of dismissal was too harsh. Id. at *48. The court ordered that the plaintiff was precluded from presenting any evidence of consequential damages, which directly addressed the wrongful conduct. Id. at *50.

In HCG Platinum, LLC v. Preferred Product Placement Corp., 873 F.3d 1191 (10th Cir. 2017), the Tenth Circuit determined that where the exclusion of evidence as a sanction under Rule 37(c)(1) has the necessary effect of a dismissal, trial courts should, in conjunction with the traditional inquiry under Woodworker's, "carefully explore and consider the efficacy of less drastic alternatives, ordinarily reserving the extreme sanction of dismissal for cases involving bad faith or willfulness or instances where less severe sanctions would obviously prove futile." Id. at 1206.

§ 13.9.2—Adverse Inference/Spoliation

In Colorado, the trial court enjoys broad discretion to impose sanctions for spoliation of evidence, even if the evidence was not subject to a discovery order permitting sanctions under Rule 37. Pfantz v. Kmart Corp., 85 P.3d 564, 567 (Colo. App. 2003). The Pfantz court rejected the argument that only an intentional spoliation of evidence justified the punitive sanction of an adverse inference instruction, finding that conduct that...