§37.7 Significant Authorities

• Jurisdiction: Washington

§37.7 SIGNIFICANT AUTHORITIES

Following are some of the significant state and federal authorities that relate to the topics discussed in this chapter.

(1) Washington

Balance the rights of the parties. The purpose of CR 37 is to provide the court with broad discretionary power to use sanctions to remedy or prevent violations of discovery orders. Assoc. Mortg. Inv. v. G.P. Kent Constr. Co., 15 Wn.App. 223,229,548 P.2d558, review denied, 87 Wn.2d 1006 (1976). The court uses its discretionary powers to impose sanctions to balance the rights of the parties so that the defaulting party does not benefit or the other party is not placed at an unfair disadvantage. Mitchell v. Watson, 58 Wn.2d 206, 361 P.2d 744 (1961). The court may, within certain guidelines, use as many and as varied sanctions as are necessary to balance the scales of justice against advantage gained by the disobedient party. Id.

Conference of attorneys required under CR 26(i). Failure to certify that a conference of attorneys took place as required by CR 26(i) means that the court has no discretion to hear a CR 37 motion. Rudolph v. Empirical Research Sys., Inc., 107 Wn.App. 861, 866-78, 28 P.3d 813 (2001).

Court has broad discretion in choosing sanctions. The trial court has broad discretion to determine the proper sanction to be imposed for a failure to make discovery. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997); Phillips v. Richmond, 59 Wn.2d 571, 369P.2d299 (1962). The sanction should be proportional to the discovery violation and the surrounding circumstances. Burnet, 131 Wn.2d at 495-98; Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 695, 41P.3d1175 (2002).

Ample authority exists for the proposition that the choice of sanctions for violation of a discovery order is discretionary and that the particular facts and circumstances of each case will determine whether the discretion has been abused. See John E. Theuman, Annotation, Judgment in Favor of Plaintiff in a State Court Action for Defendant's Failure to Obey Request or Order to Answer Interrogatories or Other Discovery Questions, 30 A.L.R.4th 9 (1984); Eunice A. Eichelberger, Annotation, Dismissal of State Court Action for Plaintiff's Failure or Refusal to Obey Court Order Relating to Pleadings or Parties, 3 A.L.R.5th 237 (1992); see also Assoc. Mortg. Inv., 15 Wn.App. at 229.

Reasons for sanctions should be stated on record. The reasons for imposing a particular sanction must be clearly stated on the record so that meaningful review can be had on appeal. Snedigar v. Hodderson, 114 Wn.2d 153, 170, 786 P.2d 781 (1990). Failure to clearly indicate consideration of a less severe sanction than dismissal is an abuse of discretion. Rivers, 145 Wn.2d at 696. A trial court's mere conclusions that a party "committed willful and deliberate discovery violations" that "significantly prejudiced" the opposing party and that the court "considered lesser sanctions and found them to be inadequate" is not sufficient to support sanctions as the findings must contain the court's reasoning in reaching those conclusions. Marina Condo. Homeowner's Ass'n v. Stratford at Marina, LLC, 161 Wn.App. 249,261,254 P.3d 827 (2011);Blairv.Ta-SeattleE.No. 176,171 Wn.2d342,254P.3d 797 (2011).

Abuse of discretion required for reversal. CR 37 vests the trial court with broad discretion as to choice of sanctions. A discretionary determination will not be disturbed on appeal except on a clear showing of abuse of discretion, i. e., that the sanction was manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. Rhinehart v. Seattle Times, 59 Wn.App. 332, 339, 98 P.2d 1155 (1990); Rhinehart v. KIRO, Inc., 44 Wn.App. 707, 710, 723P.2d22 (1986), review denied, 108 Wn.2d 1008, and appeal dismissed sub nom. Rhinehart v. Tribune Publ'g Co., 484 U.S. 805 (1987). It also may be an abuse of discretion not to impose sanctions. Demelash v. Ross Stores, Inc., 105 Wn.App. 508, 530, 20P.3d447 (2001). Under CR 37, the trial court has broad discretion to impose sanctions for noncompliance with a discovery order and will be reversed on appeal only upon a showing of manifest abuse of discretion. Phillips, 59 Wn.2d 571; Assoc. Mortg. Inv., 15 Wn.App. 223. See also Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 338, 858P.2d1054 (1993), and cases cited therein.

Default judgment may be entered. A default judgment is a sanction within the trial court's discretionary power under CR 37(d) when a defendant fails to respond to a plaintiff's CR 34 request for production of documents and also fails to appear at the hearing on plaintiff's motion to compel production under CR 37(a). Pamelin Indus., Inc. v. Sheen-U. S.A., Inc., 95 Wn.2d 398, 622 P.2d 1270 (1981).

Required elements to impose "harsher remedies" under CR 37(b). To impose one of the "harsher remedies" under CR 37(b), the record must clearly show (1) one party willfully or deliberately violated the discovery rules or orders, (2) the opposing party was substantially prejudiced in its ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would have sufficed. Burnet, 131 Wn.2d 484. The test is not whether the discovery violation deprived the opposing party of a fair trial. Instead, the record must show that the discovery violation prejudiced the opposing party's ability to prepare for trial. Magaha v. Hyundai...