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Lawyers’ Corner: Discovery Sanctions in Goff v Bontrager

As a trial attorney, your client’s case often rests on your ability to meet deadlines. But when circumstances make that difficult, you could find yourself facing discovery sanctions. A recent case lays out what to expect when you or your client falls behind.

In a recent unpublished opinion, In re Estate of James Allen Goff v Bontrager, the Michigan Court of Appeals considered appropriate discovery sanctions in light of a plaintiff’s lawyer’s “nonchalant approach to the discovery order.” The case provides a review of the factors and what to expect when you miss important discovery deadlines.

The wrongful death lawsuit was the result of a motorcycle accident on July 10, 2012. The decedent’s personal representative was his mother, a resident of Florida. The decedent was originally from Florida as well and many of his doctors and medical records were located out of state. His personal representative had a hard time responding to discovery because her son was 30 years old when he died, did not live with her, and had not always shared information about doctors and hospitals with his family.

On top of that, the defendant’s attorney was especially zealous with his discovery. Within a three-month period, defendant submitted seven separate discovery requests and had filed two motions for sanctions because of missed deadlines. Those discoveries included interrogatories, requests for production, and requests to admit. Defendant was seeking everything from medical records to witness summaries, some of which was simply not in the personal representative’s reach.

All of this happened in relatively short order. The first discovery request was made on May 21, 2014. Within less than 5 months, the case was dismissed as a discovery sanction. That was a problem according to the Court of Appeals.

MCR 2.313 Discovery Sanctions

When a party fails to meet discovery deadlines, MCR 2.313 allows a trial court to impose discovery sanctions. When a plaintiff fails to comply with an order to compel discovery, he or she could see her case dismissed. But the Michigan Court of Appeals quoted Mink v Masters, emphasizing:

” The sanction of default judgment[, which is as harsh as dismissal,] should be employed only when there has been a flagrant and wanton refusal to facilitate discovery and not when failure to comply with a discovery request is accidental or involuntary.”

The court said that before deciding to dismiss a case, a judge should consider several factors:

  1. Whether the violation was willful or accidental;
  2. The party’s history of refusing to comply with discovery requests;
  3. The prejudice to the other party;
  4. The party’s compliance with other provisions of the order; and
  5. Whether a lesser sanction would better serve the interests of justice.

That didn’t happen in Goff. The judge refused to “wet nurse” the case and dismissed the complaint. The Court of Appeals ruled that this was an abuse of discretion:

” The trial court considered no other available options in this case. This is particularly concerning when we take into account that all counsel indicated prior to the start of the hearing that they had reached an agreement concerning the discovery, so long as the trial court would grant a 45-day discovery extension to allow sufficient time for receipt of the relevant materials.”

It was not as though the case “had been languishing uneventfully” or was otherwise overdue. Nor did the trial court make a finding that the plaintiff’s delays were wilful or consider the plaintiff’s history of complying with discovery requests. The court said:

” Throughout the hearing, the trial court appeared to become more frustrated with counsel for each of the parties, which is understandable due to their dispute over what was sent and what was received by each, but it may have distracted the trial court from focusing on considering the relevant factors in fashioning an appropriate sanction.”

The trial court judge allowed frustration with the attorneys to interfere with the family’s right to compensation. The court sent it back for the judge to impose different discovery sanctions more in line with the plaintiff’s behavior.

Representing estates in wrongful death actions is often a balance of zealous representation and careful hand holding. Families often have less access to important discovery information than plaintiffs pursuing their cases directly. That puts trial attorneys in the difficult, and often, position of having to seek extensions or chasing down discovery information independently. At least Goff provides some protection for plaintiff families and ensures that dismissal will only apply in the most severe cases. With this case at at plaintiff’s attorneys’ disposal, it will be harder for defense attorneys to shut down a case when discovery information is temporarily out of reach.

David Christensen is a wrongful death attorney at Christensen Law in Southfield, Michigan. He has represented the families of people killed in auto accidents for over 20 years. If your client is facing a tough wrongful death action, contact Christensen Law today for a referral.