AuthorAshley S. Lipson
Without enforcement,
demands are nothing but
empty, hollow threats.
Chapter 17
Table of Contents
§17.10 The Basics
§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
§17.40 The Forms That You Need
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
§17.10 Guerrilla Discovery 17-2
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-compli-
ance 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 judg-
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.
The subject matter of this chapter is important
enough to be considered throughout the entire treatise.
In fact, all of the weapons chapters (5 through 10) and
the material relating to subpoenas (Chapter 11) have
their own separate sections dealing with enforcement.
This particular chapter is directed at the more generic
matters relating 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 per-
sonal 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, polite-
ness and limited accommodation can be very import-
ant at this sensitive juncture.
§17.10 The Basics
Don’t ever launch a discovery weapon unless
you are prepared to enforce it. It’s difficult to over-
state the importance of this rule. Often, ignored or
unenforced discovery can be worse than no discovery
at all. Permitting the opposition to ignore your discov-
ery 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 sat-
isfied with the results. And that, of course, can place
you in a defensive posture with respect to summary
disposition, regardless 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 pro-
vide 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 federal), 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 counter-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 interrogatories 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.
17-3 enForcement §17.12
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.
7 See Freeman v. Foss, 298 Ga. App. 498, 680 S.E.2d 557 (2009). Dismissal of a nuisance action was warranted as a sanction
for the plaintiffs’ discovery violations, in failing to provide information regarding an expert witness who was to provide an opin-
ion on a diminution of the value of plaintiffs’ property. The plaintiffs’ counsel repeatedly misrepresented that he would provide
the requested discovery about the expert, whose opinions were clearly identified in a settlement demand letter, resulting in
more than one extension of the discovery period and also more than one continuance of trial.
8 Buck v. Estate of Buck, 291 S.W.3d 46 (Tex. App. 2009). In a probate matter, the trial court was justified in concluding that the
probate claims of the testator’s grandson lacked merit, such that the court’s imposition of the “death penalty” discovery sanc-
tion striking all of the grandson’s pleadings (so as to permit admission of a competing earlier will, which did not name grandson
a devisee) was not excessive. The grandson had a string of discovery abuses, such as a failure to appear for his depositions,
failure to provide a sworn accounting, failure to pay fees, and failure to appear to give testimony, for which the trial court had
previously tailored less severe sanctions. The abuses, however, were never rectified.
9 See Rule 56 of the Federal Rules of Civil Procedure (Summary Judgment) or an applicable state counterpart.
§17.12 Using 37-Caliber Ordinance
Enforcement is mine, sayeth Rule 37. That par-
ticular 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 selected, Rule 37 pro-
vides 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, particu-
larly 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
discovery 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 strate-
gy involves a combination of Rules 37 and 56 of the
Federal Rules of Civil Procedure (or their state coun-
terparts), when the time is right. The rationale for this
strategy is simple. Judges will always be reluctant to
grant a dismissal or default based on discovery viola-
tions alone.6 Such sanctions are available and accessi-
ble when deployed individually, to be sure, but they
stand a much greater likelihood of success when used
in tandem.
Judges are rightfully reluctant to terminate a
case based on procedural, as opposed to substantive,
grounds. Such terminations normally involve at least
a hint that the client is being blamed for the sins of
his attorney, which propels the court in the undesired
direction of leniency. If, however, the judge suspects
that the enemy’s position substantively lacks merit, he
or she will be that much more responsive to dispositive
discovery sanctions.7 By the same token, continued
discovery violations and sanctions may lead the court
to believe that the perpetrator’s position lacks merit.8
Therefore, the strongest dispositive motion
should, without fail, include the following allegations
(arguments), which should be supported by affidavits,
pleadings or discovery responses:9
1. The deadline for discovery has passed.
2. We have promptly complied with all of the
opposition’s proper discovery requests.
3. Despite repeated requests (and orders of
this court), the opposition has repeatedly
failed and refused to provide required
and needed responses to our discovery

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