AuthorAshley Lipson
Without enforcement,
demands are nothing but
empty, hollow threats.
Chapter 17
§17.11 Examination of Responses
§17.12 Using 37-Caliber Ordinance
§17.13 Other Enforcement Weaponry
§17.14 Enforcement in State Courts
§17.20 FOLLOW-UP
§17.30 APPEALS
Form 17.1 Motion to Exclude Undisclosed Witness
Form 17.2 Motion for Continuance (Due to Non-Disclosure)
Form 17.3 Skeletal Motion for Summary Judgment
Form 17.4 Motion for Costs and Attorney Fees
The subject matter of this chapter is important enough to be con-
sidered throughout the entire treatise. In fact, all of the weapons
chapters (5 through 10) and the material relating to subpoenas (Chap-
ter 11) have their own separate sections dealing with enforcement.
This particular chapter is directed at the more generic matters relat-
ing to enforcement, as opposed to those that are weapon-specific.
For lay persons, the stress of discovery normally begins as soon
as they are requested to provide personal information to an enemy
whom they are suing or who is suing them. Stress among lawyers
is, however, a different matter. For us, submitting and responding to
discovery requests is merely a normal part of our basic professional
lives. Initially, everything is normal and cordial. Things don’t seem
to get personal until you tell the opposing attorney that his or her
client’s responses are not going to suffice. From there, things always
seem to escalate. Therefore, restraint, politeness and limited accom-
modation can be very important at this sensitive juncture.
Don’t ever launch a discovery weapon unless you are prepared
to enforce it. It’s difficult to overstate the importance of this rule.
Often, ignored or unenforced discovery can be worse than no dis-
covery at all. Permitting the opposition to ignore your discovery
requests with impunity is unforgivable.1 The court has every right to
assume that your failure to voice a timely objection or file a proper
motion means that you have exercised your discovery rights and
are satisfied with the results. And that, of course, can place you in
a defensive posture with respect to summary disposition, regard-
less of whether you are a plaintiff or defendant. Therefore, if the
enemy fails to provide a complete response, you must act and act
quickly.2 Every jurisdiction’s set of discovery rules will provide for
enforcement. As is the case with most states, the federal rules form
the model.3 And, regardless of which court you are in (state or fed-
eral), the rules granting to the court broad discretion for discovery
matters and applicable sanctions are similar.3.1
§17.11 Examination of Responses
Expect resistance. If your attack is effective and you are doing
your job properly, you should expect the enemy to make a count-
er-move or offer some form of resistance. You should never expect
your opposition to respond totally and fully comply without some
form of coercion. A good enemy will always test your metal.
Too often, I have witnessed defeatist attitudes, particularly among
young associates, to the effect of “Why bother to spend time with in-
terrogatories or depositions? They (i.e., the opposing party) are just
going to object or give us a bunch of bull.” The proper attitude is one of
acceptance; i.e., you should accept the fact that the discovery campaign
only begins with the request. Then you should delight in enemy resis-
tance. After all, if the enemy merely surrenders, you really can’t drag
him before the judge, seek sanctions, or smear him into a bloody pulp.
So, if the enemy resists, rejoice and go directly to the next Section.
§17.12 Using 37-Caliber Ordinance
Enforcement is mine, sayeth Rule 37. That particular rule has
provided a ubiquitous model for the enforcement of discovery, in
general.4 According to the United States Supreme Court, the purpose
behind Rule 37 of the Federal Rules of Civil Procedure was to protect
the courts and opposing parties from “delaying or harassing tactics
during the discovery process.”5 Therefore, regardless of weapon se-
lected, Rule 37 provides remedies for discovery non-compliance. But
there are other provisions, particularly on the federal front.
Critical Strategic Point
Plaintiff or defendant, state court or federal court, your ultimate
goal is to win. In the greatest majority of cases, victory will be
decided by motions for summary judgment, not by a jury verdict,
particularly those based upon discovery sanctions.
As is the case with all forms of combat, always prepare an assault
that involves a combined attack, a so-called “1-2 punch,” to finish
the enemy. For the practitioner, this means an attack that includes
both: (1) a claim that the opposition’s failure to comply with dis-
covery warrants a default or dismissal, and (2) and that there is no
legitimate basis for the opposition’s claim or defense, on the merits.
In essence, the strategy involves a combination of Rules 37 and 56
of the Federal Rules of Civil Procedure (or their state counterparts),
when the time is right. The rationale for this strategy is simple. Judg-
es will always be reluctant to grant a dismissal or default based on
discovery violations alone.6 Such sanctions are available and acces-
sible when deployed individually, to be sure, but they stand a much
greater likelihood of success when used in tandem.
1 Scott v. Greenville Housing Authority, 579 S.E.2d 151, 353 S.C. 639 (S.C. App. 2003) delivered this eloquent statement: “When discovery rights are
trampled, prejudice must be presumed.”
2 Tolliver v. Federal Republic of Nigeria, 265 F.Supp.2d 873 (W.D.Mich. 2003). The failure to timely raise issues of non-compliance under discovery
sanctions rules could constitute a waiver of such rights.
Mikeron, Inc. v. Exxon Co., U.S.A., 264 F.Supp.2d 268 (D.Md. 2003). A plaintiff who, in nearly two years, had never moved to compel depositions or
responses to interrogatories or document requests could not do so for the first time at summary judgment.
Once a motion has been filed, the enemy may not necessarily be able to avoid its consequences, even if he or she files a late response to your discovery
requests. Being first on the draw does, therefore, have its advantages. See Greenbriar Homes, Inc. v. Builders Insurance, 615 S.E.2d 191, 273 Ga.App.
344 (2005) holding that once a motion for failure to make discovery has been filed, the opposing party may not preclude the imposition of sanctions by
making a belated discovery response. Despite the late submission, the trial court was, nevertheless, required to hold a hearing to determine whether the
delinquent party’s failure to respond was willful, rather than negligent.
3 See §17.14.
3.1 Smith v. Murphy, 994 N.E.2d 617 (Ill.App., 2013). The decision of whether or not to impose sanctions for a party’s failure to comply with the rules or
court orders on discovery lies within the sound discretion of the trial court, and trial court’s imposition of sanctions will not be reversed absent an abuse
of discretion.
For additional discussion concerning the court’s discretion in discovery matters, see supra, §2.11.
4 All but a few states have provisions that are substantially similar to Rule 37. Those that differ are: California, New York, Connecticut (see Connecticut
Superior Court Rule §231), Maryland (see Maryland’s Rule 37), Missouri, New Hampshire, Pennsylvania (see Pennsylvania Rule 4019), Texas (see Texas
Rule 215).
5 Cunningham v. Hamilton County, 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999).
6 See infra, §12.44.

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