Two Recent Decisions Imposing Sanctions for Discovery Failures

In Etame v. Nguh, 2024 WL 5102931 (Apl. Ct. Md. Dec. 13, 2024)(unreported), and Benton v. Hartley Hall Nursing & Rehabilitation Ctr., Inc., 2024 WL 4890854 (Apl. Ct. Md. Nov. 26, 2024)(unreported), dismissals for discovery violations were affirmed.

ETAME

Etame arose out of a trustees sale of real property.  During a partition and sale proceeding, Ms. Nguh, one owner, propounded discovery on Mr. Etame, the opposing owner.  The Appellate Court wrote:

Mr. Etame failed to respond to discovery, and on March 3, 2022, Ms. Nguh filed a motion for discovery sanctions and a motion to deem facts as admitted and documents as genuine. Mr. Etame did not appear for his deposition on March 10, 2022. As a result, Ms. Nguh filed a motion for sanctions for his failure to appear.

The circuit court denied most of Ms. Nguh’s motions, but held the sanctions motion in abeyance, and ordered Mr. Etame to appear for deposition.  After the parties discussed scheduling, Mr. Etame failed to appear for deposition.  Ms. Nguh moved for sanctions.

The circuit court ordered Mr. Etame to submit any objections, which he did, with some discovery responses.  The circuit court found them to be non-responsive and again ordered him to provide specific responses.  He failed to comply. Id. at *3.

The circuit court then prohibited Mr. Etame from presenting any evidence and struck his pleadings, including counterclaims.  It then ordered sale of the property by a trustee.

After a dispute over distribution, Mr. Etame appealed, arguing abuse of discretion in the imposition of discovery sanctions.  “He contends that the discovery requests to which he failed to respond concerned financial records that were not relevant to the partition claim.”  Id. at *4.

Reviewing under an abuse of discretion standard, the Appellate Court affirmed, citing Md. Rule 2-433(a)(3).  It held that, in determining whether to apply discovery sanctions, the following factors must be considered:

“[W]hether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, [and] whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.”

Id. at *4 (citations omitted).

Here, the discovery violation was substantial:

Mr. Etame simply refused to cooperate in discovery. The court found that Ms. Nguh’s counsel had attempted to communicate with Mr. Etame numerous times, but Mr. Etame had refused to return counsel’s phone calls or emails, and he failed to provide any responsive answers to Ms. Nguh’s discovery requests, including requests for his address and phone number.

Mr. Etame was found to have violated multiple court orders. Therefore, the Appellate Court held that there was no abuse of discretion by the trial court.

BENTON

In Benton, Ms. Benton’s wrongful termination complaint against her former employer was dismissed as a sanction for multiple discovery violations.  The Appellate Court affirmed.

After Ms. Benton filed suit, Hartley Hall propounded interrogatories and document requests. Ms. Benton did not respond. Id. at *1.  Hartley Hall’s attorney wrote to Ms. Benton’s and (according to an affidavit) Ms. Benton’s attorney said he would respond that week.

The Court wrote that: “After he received no responses or contact with West after April 10, [defense counsel] Doroshenko contacted [plaintiff’s counsel] West for an explanation. According to Doroshenko, the two agreed West would supply discovery responses by April 28, 2023.”

However, by April 30^th, there were no responses. The Court wrote: “The same pattern repeated itself over the next month with Dorshenko contacting West, at least twice during May, asking for an update. Each time, West responded that he would comply by a certain date. West never complied with the discovery requests at all.”

This led to a motion to compel. Ms. Benton then responded; however, no documents were produced and Hartley Hall asserted that the interrogatory answers were incomplete or unresponsive.

The Court held a status conference and deferred ruling for 60 days, “presumably to allow Benton to provide full interrogatory answers and documents, or object to the same.”  Immediately thereafter, the employer’s lawyer sent a letter detailing asserted deficiencies in the responses.

In an affidavit, Doroshenko testified that he heard nothing from West in response to the deficiency letter and emailed West asking for an explanation on July 14, 2023. According to Doroshenko, West told him he “must have missed the email,” and that he would review it and respond.

Id. at *2.

The plot then thickened. The Court wrote: “West did not respond, however. As a result, Hartley Hall filed a second motion to compel….” Id. at *2. The Court set a hearing and “the court instructed the attorneys to confer within 30 minutes after the conclusion of the hearing to determine if the responses could be delivered within one week. If the deficiencies remained at the end of the week-long period, then the parties were to inform the court.”

The attorneys met. Defense counsel sent, by mail and email, a confirming letter.  Ms. Benson did not provide the responses. Some communications followed.  Eventually, defense counsel notified the trial court that complete responses had not been received.

The trial court entered an order dismissing the Complaint due to repeated discovery failures.

Ms. Benton moved to vacate, and she “claimed she complied with all outstanding discovery requests.” The Appellate Court wrote that:

“It was clear from the two competing versions of what transpired “that somebody [was] not being truthful with the [c]ourt.” To impress upon them the gravity of the claims they made in their pleadings, the court put both [plaintiff’s counsel] West and [new defense counsel] Goetzl under oath.” [emphasis added].

The Appellate Court summarized the following hearing. Id. at *3-4.  “Goetzl also pointed out several inaccuracies in West’s testimony….  In ruling on the motion, the court credited Goetzl’s testimony but discounted West’s testimony. The court found that after the hearing on the motion to compel, the court expected the attorneys would be able to resolve the dispute. The court concluded that West had several opportunities to reasonably comply with the discovery request but did not. As a result, the court denied the motion to vacate.”  Id. at *4.

Like Etame, the Benson Court applied Md. Rule 2-433(a)(3), using the same factors. It added that they may overlap and that the trial court need not announce each stop of the trial court’s analysis.  Instead, the Appellate Court will look at the record as a whole.  Here, the record demonstrated that all of the factors were considered.

Perhaps most importantly, the order cites to Rule 2-433(a)(3), which the circuit court noted “gives courts broad discretion to impose sanctions , which range from striking pleadings to dismissal, and the decision whether to invoke the ‘ultimate sanction.’ ” From this we conclude the court knew it had wide discretion to address discovery violations.

It is interesting that, in both cases, the circuit court gave the producing party a number of opportunities to comply with the discovery rules.

There are cases where litigants are being directed to support their discovery positions under oath.  Sometimes Discovery Disputes Do Not Bring Out the Best in Us (Apr. 10, 2024).