This post concerns the severe sanctions that can result from a party’s (and/or attorney’s) discovery gamesmanship. Because the aim of my blogs is to educate, the decision that is the subject of this post is not cited and the name of the attorney is not mentioned.
A Florida state court judge recently decided that an insurer and its attorney played fast and loose with the rules and spirit of discovery in an effort to cause a “trial by ambush” and/or a game of “blind man’s bluff.” More specifically, the judge found that the insurer and its attorney had, among other things, (a) consistently “engaged in a pattern of conduct calculated to evade or stym[ie] discovery on issues central to this lawsuit,”1 (b) “interfere[d] with this Court’s ability to impartially adjudicate the matter,” (c) “unfairly hamper[ed] the presentation of Plaintiff’s claim,” (d) “deliberate[ly] and contumacious[ly] disregard[ed] … the Court’s authority and general[ly] willful[ly] [did not comply] with the procedural rules,” (e) made misrepresentations to the court, (f) intentionally delayed production of germane documentation to the policyholder, (g) intentionally caused scheduling delays (e.g., depositions and hearings), and (h) engaged in frivolous motion practice aimed at harassing and delaying.
The judge noted that Florida courts have routinely disapproved of such conduct,2 and reminded the reader that “[t]he Florida Rules of Civil Procedure, taken as a whole, are designed to ‘promote the orderly movement of litigation.’”3 The judge also reminded the reader of the maxim written on his courtroom wall: “We Who Labor Here Seek Only Truth.”
The judge determined that he could not sit idly by in the face of such conduct, and based this determination on myriad holdings from other Florida courts; e.g., (a) “[A] party’s fraudulent conduct in securing a prior appellate opinion did not justify setting the decision aside… . A proper allegiance to our system of justice and a proper respect from our own role in preserving its sanctity mandate the conclusion that Murphy has forfeited his right to proceed,”4 (b) “When professional judgment does not restrain a lawyer’s zealous advocacy, … the courts must act to assure that aggressive advocacy does not frustrate or disrupt the administration of judicial proceedings,”5 and (c) “A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.”6
So, the judge sanctioned the insurer and its attorney. The insurer’s pleadings were struck and entry of default judgment was entered in favor of the policyholder. The attorney was barred from ever practicing in front of the judge again. In so doing, the judge addressed the time-tested sanction factors articulated by the Florida Supreme Court approximately twenty years ago:
1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to a viable alternative, the trial court should employ such alternative.7
The war of attrition litigation style has been around since at least the early 1990s.8 As a policyholder attorney, I was encouraged by this ruling against such discovery and litigation tactics.
To read previous posts in my series on dynamite discovery decisions, click here.
1 Regarding central issues, the judge was most frustrated by the insurer’s refusal to acknowledge a pipe break despite acknowledgement by the insurer’s plumber of a pipe break.
2 For example, the judge cited to King Pest Control v. Binger, 379 So. 2d 660 (Fla. 4th DCA 1980), Heimer v. Travelers Ins. Co., 400 So. 2d 771 (Fla. 3d DCA 1981), and Surf Drugs, Inc. v. Vermette, 236 So. 2d 108 (Fla. 1970).
3 Citing Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).
4 Citing Hanono v. Murphy, 723 So. 2d 892, 896 (Fla. 3d DCA 1998).
5 Citing Hanono, at 896 (Fla. 3d DCA 1998)
6 Citing Mercer at 946.
7 Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).
8 In the early 1990s, certain large insurance companies changed the claim process from an impartial, policyholder-friendly process to a corporate profit, adversarial process. In sink or swim fashion, most (if not all) other insurance companies followed suit.
