Chapter 3 - § 3.8 • ENFORCEMENT AND SANCTIONS

• Jurisdiction: Colorado

§ 3.8 • ENFORCEMENT AND SANCTIONS

§ 3.8.1—Failure to Produce

Courts may compel a party to produce responsive documents where the party fails to comply with discovery requests or abuses the process by complying in an evasive or confusing manner. F.R.C.P. 37; C.R.C.P. 37. Moreover, courts may order that the compelled party pay the reasonable costs (including attorney fees) in bringing the motion for such an order. Id. If a party fails to comply with an order to compel, the court may sanction the party in various ways. Note that there is no longer a willfulness requirement for Rule 37 sanctions; instead, courts may impose sanctions commensurate with a party's culpability. F.R.C.P. 37; C.R.C.P. 37; Middleton v. Beckett, 960 P.2d 1213, 1216 (Colo. App. 1998); Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 676 (Colo. 1987).

A non-exclusive list of potential sanctions includes:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

F.R.C.P. 37(b)(2)(A); see C.R.C.P. 37(b)(2).

An example of one of these sanctions is a court excluding the withheld documents or all evidence on the issues to which they were relevant. The power to exclude documents for non-compliance during discovery is firmly within the discretion of the trial court. C.R.C.P. 37(b)(2); F.R.C.P. 37(b)(2); see also Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 897 (8th Cir. 1978); Stell v. Jordan, 85 F. App'x 641, 641 (9th Cir. 2004). However, if the documents that the responding party fails to produce are irrelevant or otherwise inadmissible, there is no prejudice to the requesting party and discovery sanctions are not appropriate. Pietramale v. Robert G. Fisher Co., 638 P.2d 847, 848 (Colo. App. 1981).

Additionally, the court may dismiss a case or enter default judgment under Rule 37(b) for failure to comply with a discovery order. Lee v. Max Int'l, LLC, 638 F.3d 1318, 1320-21 (10th Cir. 2011). In deciding to dismiss, the trial court should consider the Ehrenhaus factors: "(1) the degree of actual prejudice to the [sanctioned party]; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for non-compliance; and (5) the efficacy of lesser sanctions." Id. at 1323 (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)). The trial court need not evaluate these factors for dismissal to be upheld on review. Id. at 1323-24. However, an appeals court may be more likely to uphold dismissal if the trial court explains the need to dismiss with prejudice. Id. at 1324 (Hartz, J., concurring).

Evasive or non-responsive answers to discovery requests may increasingly...