civil-procedure discovery sanctions
Remedies for missing discovery
<p>What happens, or what remedies are offered to a plaintiff, when a defendant in a civil action does not provide complete discovery?</p>
<p>Suppose:</p>
<ol>
<li>The plaintiff requested discovery of &quot;all emails sent by defendant pertaining to subject <em>X</em>&quot;</li>
<li>The plaintiff actually has an authenticated copy of at least one of the defendant's emails pertaining to subject <em>X</em></li>
<li>The defendant did not include that email in discovery</li>
</ol>
<p>In this scenario the plaintiff has evidence (#2) that the defendant failed to provide complete discovery.</p>
<p>If the plaintiff raises the missing evidence in court then the defendant could say, &quot;Sorry, that was an honest oversight.  We reviewed our material and believe that's the only thing missing from our discovery.&quot;  (An astute plaintiff might have held another relevant document in reserve, and could now produce that one, and the defendant could respond, &quot;Oops, I did it again.  Honest mistake.&quot; Etc.)  I don't see any way for a tribunal to distinguish between honest mistakes and intentional withholding of adverse evidence.</p>
<p>The plaintiff could argue based on a single relevant omission, &quot;The defendant concealed material evidence. <em>Falsus in uno, falsus in omnibus.</em>&quot;  Does that apply?  For example: Does the plaintiff then get a presumption that all facts that <em>could have been</em> supported in discovery <em>are</em> sustained?</p>

<p>The answer depends on the jurisdiction, as always. But under the Federal Rules of Civil Procedure, which are the model for most American courts, there are all kinds of potential sanctions for discovery violations.</p>
<p><a href="https://www.law.cornell.edu/rules/frcp/rule_37" rel="nofollow noreferrer">Rule 37(b)</a>:</p>
<blockquote>
<p>If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:</p>
<p>(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;</p>
<p>(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;</p>
<p>(iii) striking pleadings in whole or in part;</p>
<p>(iv) staying further proceedings until the order is obeyed;</p>
<p>(v) dismissing the action or proceeding in whole or in part;</p>
<p>(vi) rendering a default judgment against the disobedient party; or</p>
<p>(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.</p>
</blockquote>
<p>But the court will not move directly to imposing sanctions against the offending party. Instead, the rules require the aggrieved party to raise the issue privately and attempt to resolve it without court intervention. If that is unsuccessful, the court may issue an order compelling discovery. Rule 37 sanctions are generally only available if the offending party then fails to comply with that order.</p>
<p>Separate from Rule 37, though, the court also has inherent authority to impose sanctions for litigation misconduct, but you can usually expect it to limit itself to Rule 37 protocols. Most judges don't want to hear about discovery, so they are happy to force people through the informal resolution process first.</p>
