Discovery is a key part of litigation that generally dictates how a case is evaluated and whether a case should go to trial. More frequently, plaintiff’s attorneys either fail or refuse to provide discovery responses. Because it is widely understood that judges do not like to hear discovery motions, there are attempts to continue accommodating through extensions or multiple CR 26(i) conferences—and attorneys may hesitate to seek sanctions when motions are ultimately required. Not utilizing discovery motions can be to our own detriment as motions to continue are needed, costs of litigation increase, and there is no deterrent to plaintiff’s actions.

When used strategically, discovery motions and requests for sanctions can alter the case trajectory. Below are personal experiences of how targeted discovery motions and sanctions significantly narrowed a plaintiff’s claims and reduced exposure.

Case A
This is a personal injury case where the plaintiff sought treatment for six years for neck and back pain. The plaintiff pursued a claim against her underinsured carrier after settling with the tortfeasor.

The defendant served discovery on the plaintiff that went unanswered. The defendant set a CR 26(i) conference, which was rescheduled three times due to the opposing counsel’s schedule. Ultimately, opposing counsel did not appear to the conference and a motion to compel was filed. The court granted the defendant’s motion and ordered responses. The plaintiff provided incomplete responses, which resulted in another motion to compel after the plaintiff failed to supplement the responses, and the defendant sought sanctions. The plaintiff then disclosed new experts after the discovery cutoff in response to a summary judgment motion.

The defendant filed another motion for sanctions and to exclude the experts. The court then ordered the parties for an in-person appearance to hear the motion for sanctions, however, opposing counsel did not appear and sent someone in his place. Following a lengthy hearing, the court ordered that:

1. Opposing counsel pays the defendant’s attorney’s fees for the motions brought and the costs for deposing any disclosed expert (a judgment be entered against the plaintiff’s counsel personally)
2. Dismissed the plaintiff’s $200,000 claim for future medical expenses
3. The plaintiff produces the remaining discovery within one week; and
4. Provided opposing counsel with express notice that any future violations would result in considering dismissal of the entire case as a first remedy rather than the last.

As a result of this ruling, opposing counsel paid over $8,000 to the defendant in fees and further agreed to limit past medical expenses because the plaintiff was unable to provide the ordered records in the time frame allotted. This reduced the plaintiff’s half-million-dollar case to a five-figure case, even on their best day.
 
Case B
Multiple plaintiffs were asserting a personal injury claim as a result of a car accident. Discovery was served on all plaintiffs, but they failed to respond. The defendant filed a motion to compel, but before the hearing date, the plaintiffs produced partial responses, forcing the defendant to strike the motion. A new CR 26(i) conference was conducted and a second motion to compel filed when the plaintiffs failed to supplement responses as agreed. Again, the day prior to the hearing, the plaintiff produced partial supplemental responses. This time the defendant did not strike the motion and the court awarded fees due to the fact the motion was the sole reason the plaintiff provided responses.
After the discovery cutoff, the defendant filed a summary judgment seeking dismissal of past and future medical expenses of all the plaintiffs. In response, the plaintiffs sought additional time to respond to obtain a report from a non-disclosed expert. The plaintiffs’ history of failing to respond to discovery and failing to supplement assisted in the court’s denial of the continuance and dismissal of all future treatment and partial dismissal of past medical expenses. The claims all settled immediately after the hearing for approximately 80 percent less than the original demands.

Conclusion
When the motions are focused on discovery items that hinder the defendant’s ability to evaluate the case or prepare a defense, the courts take these motions seriously. Even if sanctions are not always awarded, discovery motions make a clear paper trail of the plaintiff’s willful noncompliance. It can also be helpful to reach out to the many defense colleagues to either obtain similar orders against a repeat offender to further demonstrate a pattern of discovery violations. While it can be time-consuming to conduct multiple discovery conferences, document each deficiency, and draft multiple motions, the dismissal of claims and/or exclusion of evidence can make it worth the squeeze.