By: Todd A. Jones and Daniel J. Knight
In the practice of law, the discovery phase can be your best friend or your worst nightmare. Interrogatories, requests for documents, and depositions can make or break your case. If a party continuously fails to comply with a court order compelling discovery, Rule 37 of the North Carolina Rules of Civil Procedure can operate to have a party’s case totally dismissed. In a recent North Carolina Court of Appeals case, the Court reviewed the woeful fate of someone trying to go against the system.
In Keesee v. Hamilton, the Court of Appeals reviewed a challenge to a Rule 37 sanctions order that had been entered by the trial court against the Plaintiff after it was determined that the Plaintiff had failed to provide discovery, had been non-compliant with a court order compelling discovery, and had made false statements to the court during a show cause hearing. In sanctioning the Plaintiff, the trial court dismissed the Plaintiff’s complaint with prejudice and entered a default judgment in favor of the Defendant on his counterclaims. Dismissal with prejudice means that the claim(s) cannot be brought again. The plaintiff also spent time in jail and was found in willful civil contempt.
On appeal, the Court of Appeals affirmed the trial court’s sanctions order on grounds that the trial court had wide discretion in entering a Rule 37 sanctions order and that the appellant had failed to show the trial judge had abused his discretion. In its opinion, the court reiterated that, while “a trial court must consider lesser sanctions prior to dismissing an action with prejudice for failure to comply with discovery, it is not required to expressly list and reject each lesser sanction that it considered in its order” (Keesee v. Hamilton, No. COA 13-1039, *13-14 (2014) (quoting Badillo v. Cunningham, 177 N.C. App. 732, 735 (2006)). Additionally, the court pointed out that the court can consider a party’s continuous civil contempt in imposing sanctions even though no contempt order had been entered.
Responding to discovery is often a long and frustrating process. However, the court’s decision in Keesee is a recent reminder of why it is imperative that you give your best effort in responding to discovery requests. Additional time searching for information and responding to discovery requests is better than having your lawsuit dismissed and not being able to bring it in the future.
For more information on this topic or any litigation issue, please contact Anderson Jones attorneys at (919) 277-2541 or by email for assistance.
This summary is for informational purposes only
and does not constitute legal advice or opinion.