Review of orders dismissing or defaulting for discovery violations: the evolution of the abuse of discretion standard.

• Author: Morande, Dean A.
• Position: Florida

Most of us are familiar with the abuse of discretion standard of review often employed by Florida's appellate courts. For certain types of orders, however, knowing only that the court will review for an abuse of discretion will do little to inform you and your client as to how that order will fare on appeal. One such situation is when a trial court dismisses a case or defaults a defendant as a sanction for a failure to abide by an order compelling discovery.

Trial courts have broad discretion to impose a wide variety of sanctions for a party's failure to comply with an order compelling discovery. The extreme option is dismissal of a plaintiff's case, or the defaulting of a defendant. (1) While such orders have always been reviewed for abuse of discretion, what constitutes an abuse of discretion in these cases has evolved considerably over the years. This article explores the evolution of the abuse of discretion standard in this context.

Discovery violations can come in many forms. Spoliation of evidence, for example, is a common ground for the imposition of sanctions. Courts generally agree that if a party has lost evidence that is critical to proving an opposing party's claim or defense, dismissal or default is justified regardless of whether the loss is willful or merely negligent. (2) This standard is relatively well-defined, probably because the destruction of evidence provides a reasonably tangible justification for sanctions, including resort to dismissal or default. (3)

Another situation that typically prompts harsh sanctions is when a party works a fraud on the court. In evaluating whether dismissal or default is warranted due to a fraud on the court, some courts have determined that "[t]he requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense." (4)

The standard for dismissal based on fraud on the court is rather similar to the standard for a general failure to comply with a discovery order. Nonetheless, the same feature that distinguishes spoliation from general noncompliance is also applicable where fraud on the court is at issue. Fraud on the court--like spoliation--is an affirmative action that amounts to an affront to the judicial system. Orders resulting from those tangible examples of misconduct are less likely to result in an abuse of discretion.

The question then arises as to when, if ever, inaction--that is, the "mere" failure to abide by a court order--will justify dismissal or default. The language of the applicable Rule of Procedure 1.380 requires only a party's "fail[ure] to obey an order to provide or permit discovery" in order to trigger the trial court's authority to impose any number of sanctions, up to and including dismissal or default. (5)

As is often the case, decisional law has expounded on the rule's minimal requirement and added conditions that must also be satisfied before an order of dismissal or default will be upheld on appeal.

The seminal case first expanding Rule 1.380 is Mercer v. Raine, 443 So. 2d 944 (Fla. 1983), in which the Florida Supreme Court held that the mere failure to comply with a discovery order is, by itself, insufficient to justify a default or dismissal. The court began by recognizing that such a sanction "should be employed only in extreme circumstances." (6) The court then announced the following standard: "A deliberate and contumacious disregard of the court's authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness." (7)

In a later decision, the court clarified that, although no "magic words" are required to justify the trial court's imposition of a dismissal or default in the face of a failure by a party to abide by a discovery order, the sanctions order must include a finding of willfulness or deliberate disregard. (8) The failure to include at least a written order with findings of fact reflecting that standard will result in an automatic reversal. Thus, after Mercer and its progeny, the mere failure to abide by a discovery order will not justify the dismissal of a case; a trial court abuses its discretion if it enters a dismissal or default order that lacks written findings of a deliberate and willful disregard of the court's authority.

Nonetheless, the Mercer standard ultimately requires only a showing that the party's violation was willful. In accord with that understanding of Mercer, several decisions--some very recent--appear to have affirmed a trial court's imposition of a dismissal or default as a sanction for a discovery violation solely on the basis that sufficient evidence existed to support the trial court's conclusion that the violation was willful or deliberate. (9)

Some post-Mercer...