CHAPTER 6.I. Motion Authorities

• Jurisdiction: United States

I. Motion Authorities

A. Motion for Evidentiary Sanctions

1. Suggested Motion Text

Alternative One (Sanction Precluding Evidence):

(Name of Moving Party) hereby moves this Court for an order precluding (Name of Party) from introducing or mentioning evidence relating to (Describe Evidence to Be Excluded). The motion is based upon the grounds that [name of party] misused the discovery process by (Describe Discovery Abuse, e.g., Failing to Appear for a Deposition) and therefore an evidence sanction, pursuant to Texas Rule of Civil Procedure 215.2(b)(4), is an appropriate remedy.

Alternative Two (Issue Sanction Establishing Facts):

(Name of Moving Party) hereby moves this Court for an order that (Describe Facts to Be Established) shall be taken as established at the time of trial in this matter. The motion is based upon the grounds that (Name of Party) misused the discovery process by (Describe Discovery Abuse, e.g., Failing to Comply With Proper Discovery Requests or Orders) and therefore may be sanctioned by way of an issue sanction, pursuant to Texas Rule of Civil Procedure 215.2(b)(3).

Alternative Three (Issue Sanction Prohibiting Party From Supporting or Opposing Claim or Defense):

(Name of Moving Party) hereby moves this Court for an order prohibiting (Name of Party) from supporting or opposing the following (Claims or Defenses): (List Claims or Defenses Forming Basis of Requested Sanction, Relating to Offending Party's Discovery Abuse). The motion is based upon the grounds that (Name of Party) misused the discovery process by (Describe Discovery Abuse, e.g., Violating Two Court Orders to Appear for Deposition and Negligently Destroying Key Evidence) and therefore may be sanctioned by way of an issue sanction, pursuant to Texas Rule of Civil Procedure 215.2(b)(4).

Alternative Four (Terminating Sanction):

(Name of Moving Party) hereby moves this Court for an order (Describe Desired Terminating Sanction, e.g., Striking the Pleadings, Staying Further Proceedings, Dismissing the Action, Rendering Default Judgment, etc.). The motion is based upon the grounds that (Name of Party) misused the discovery process in an egregious fashion by (Describe Discovery Abuse, e.g., Violating Two Court Orders to Appear for Deposition and Intentionally Destroying Key Evidence) and therefore may be sanctioned by way of a terminating sanction, pursuant to Texas Rule of Civil Procedure 215.2(b)(5).

2. Motion Summary

This motion is based upon Texas Rule of Civil Procedure 215, which provides the authority for evidence, issue, and terminating, or "death penalty" sanctions against parties who have misused the discovery process. See Tex. R. Civ. P. 215.1 to 215.5; Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2003) (terminating sanction); Rundle v. Comm'n for Lawyer Discipline, 1 S.W.3d 209, 215 (Tex. App.—Amarillo 1999, no pet.) (evidence sanction); Swain v. Sw. Bell Yellow Pages, Inc., 998 S.W.2d 731, 733 (Tex. App.—Fort Worth 1999, no pet.) (issue sanction); Pena v. Williams, 547 S.W.2d 671, 673 (Tex. Civ. App.—San Antonio 1977, no writ.) (terminating sanction).

Note: This chapter provides general authorities for obtaining discovery sanctions [6:3] as well as authorities for abuses arising from the following specific discovery types:
• Depositions;
• Interrogatories;
• Production Requests;
• Mental and Physical Examinations;
• Requests for Admission.

3. Supporting Authorities

Texas Rule of Civil Procedure 215.2 states:

If a party or an officer, director, or managing agent of a party or a person designated under Rules 199.2(b)(1) or 200.1(b) to testify on behalf of a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery, including an order made under Rules 204 or 215.1, the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following:

(1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party;
(2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him;
(3) 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;
(4) 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;
(5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party;
(6) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(7) when a party has failed to comply with an order under Rule 204 requiring him to appear or produce another for examination, such orders as are listed in paragraphs (1), (2), (3), (4), or (5) of this subdivision, unless the person failing to comply shows that he is unable to appear or to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.
Misuses of the discovery process, as provided by Texas Rule of Civil Procedure 215.1(b), include:

• failing to appear before an officer who is to take the deposition [215.1(b)(2)(A)];
• failing to answer a question propounded or submitted upon oral examination or written questions [215.1(b)(2)(B)];
• failing to serve answers or objections to interrogatories, requests for inspection, or other permitted discovery [215.2(b)(3)];
• giving an evasive or incomplete answer to discovery [215.1(c)].

a. Misuse of Discovery Process

Altesse Healthcare Solutions, Inc. v. Wilson, 540 S.W.3d 570, 572 (Tex. 2018) ("Trial courts have broad authority to impose appropriate sanctions on recalcitrant litigants . . . That authority is not, however, without limits . . . a direct relationship must exist between the offensive conduct and the sanction imposed.").

Altesse Healthcare Solutions, Inc. v. Wilson, 540 S.W.3d 570, 572 (Tex. 2018) ("[A] court imposing sanctions must seek to ensure that the punishment fits the crime.").

Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520 S.W.3d 848, (Tex. 2017) ("Sanctions may be imposed, after notice and a hearing, on parties who refuse to respond, or who give inadequate responses, to valid discovery requests or orders. . . . For purposes of these provisions, evasive or incomplete answers are treated as a failure to answer.").

Horizon Health Corp. v. Acadia Healthcare Co., 520 S.W.3d 848, (Tex. 2017) ("[S]anctions may be appropriate even when a party eventually complies with a discovery request.").

Horizon Health Corp. v. Acadia Healthcare Co., 520 S.W.3d 848, (Tex. 2017) (discovery sanctions "must further one of the recognized purposes of discovery sanctions . . . and must be 'just,' no more severe than required to further their legitimate purposes, and specifically related to the harm done by the condemned conduct").

Petroleum Solutions, Inc. v. Head, 454 S.W.3d 482, 489 (Tex. 2014); Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 21 (Tex. 2014) (in issuing sanctions for discovery abuse, two elements should be considered: first, a direct relationship must exist between the offensive conduct, the offender, and the sanction imposed, which means that the sanction must be directed against the wrongful conduct and toward remedying the prejudice suffered by the innocent party; second, a sanction must not be excessive, which means it should be no more severe than necessary to satisfy its legitimate purpose, and requires the trial court to consider the availability of lesser sanctions and, in all but the most exceptional cases, actually test the lesser sanctions).

Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 21 (Tex. 2014) (the remedial purpose supporting the imposition of a spoliation remedy is to restore the parties to a rough approximation of their positions if all evidence were available).

Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 184 (Tex. 2012) ("[T]wo factors mark the bounds of a 'just' sanction. First, a direct relationship between the offensive conduct and the sanction imposed must exist. . . Second, the sanction imposed must not be excessive.").

PR Invs. & Specialty Retailers, Inc. v. State, 251 S.W.3d 472, 481 (Tex. 2008) (discovery sanction should be no more severe than necessary to satisfy its legitimate purposes, and courts must consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance).

Shops at Legacy (Inland) L.P. v. Fine Autographs & Memorabilia Retail Stores, Inc., 418 S.W.3d 229, 232 (Tex. App.—Dallas 2013, no pet.) (if a trial court finds a party is abusing the discovery process in seeking, making, or resisting discovery, then the trial court may, after notice and hearing, impose any appropriate sanction authorized by Rule 215.2(b)(1)-(5) and (8)).

Shops at Legacy (Inland) L.P. v. Fine Autographs & Memorabilia Retail Stores, Inc., 418 S.W.3d 229, 232 (Tex. App.—Dallas 2013, no pet.) ("[W]hen determining whether a trial court's imposition of sanctions was just, an appellate court considers the following two standards: (1) whether there...