MOTIONS TO COMPEL, SANCTIONS AND CONTEMPT 1

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1 MOTIONS TO COMPEL, SANCTIONS AND CONTEMPT 1 Rules of Procedure, Rules of Judicial Administration, and local administrative orders of the court are meaningless unless they are enforceable and enforced. A domino effect occurs when discovery requests are not complied with, rules are not followed, and trials or hearings have to be continued or cancelled. Generally professionalism considerations and ethical requirements encourage and even mandate orderly, proper, timely and complete compliance. Occasionally, a few lawyers will bend or ignore the rules and requirements and sanctions and other means of compliance must be sought from the court. An orderly discussion mandates separating sanctions into those allowed by the rules of civil procedure, those authorized by statute and those imposed by the court for violation of orders or as contempt of court. The legal foundation giving rise to the authority to impose the sanction or penalty also determines the degree, type, duration and ultimate effect of the sanction. Further, consideration must go into whether the sanction is in punishment for some act taken or not taken, if it is one to cure or remedy damage done by the action or inaction or is a vehicle to obtain compliance. PROFESSIONALISM POINTER: There appears to have been a rapid increase in the number of requests for sanctions presented to the court. At least one trial judge has observed that every motion he/she sees seems to request sanctions. Many of these appear to occur without even an attempt to resolve the matter amongst the attorneys without invoking the jurisdiction of the court. Professionalism, civility, ethical considerations and just common courtesy mandate the attorney seek sanctions only in those cases where (1) all efforts to resolve the matter amicably have been exhausted, (2) there is a significant history with this attorney, or this law firm, of not acting in a responsive and professional matter, or (3) the failure to obtain this information will have a significant and prejudicial effect on your client s case. DISCOVERY VIOLATIONS Fla. R. Civ. P provides the rule based authority to sanction parties for failure to comply with various types of discovery. The process is commenced by the filing of a Motion to Compel. As noted hereinafter, there is an important distinction between sanctions available for violation of a discovery rule versus violation of an order of the court on discovery issues. PRACTICE TIP # 1: Generally matters of discovery disputes can and should be worked out amongst the attorneys without the need for the filing a motion to compel and certainly a hearing on same. Counsel should attempt to resolve the matter amongst 1 Any cases or authorities cited in the outline should be confirmed, before utilizing, as to validity, or continued validity, of the citation and their application to the principle(s) for which they are cited. 2 Fla. R. Civ. P is titled Failure to Make Discovery; Sanctions. Throughout the rule it refers back to other sections of the discovery rules including interrogatories, deposition, examination of the person, entry upon property and even requests for admissions. 1

2 themselves via telephone calls or s. If it cannot be resolved in that manner, a meet and confer must occur before the matter is noticed for hearing and the certification must be attached to the Notice of Hearing. Admin. Rule It must be remembered that the enforcement of Fla. R. Civ. P protects the integrity of the judicial system and its litigants by sanctioning a party engaged in discovery abuses. Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701, 705 (Fla. 4 th DCA 1995). For this reason, cost and attorney s fees incurred to obtain compliance with the discovery rules will be awarded. The Motion: PROCEDURAL STEPS The initiation of sanctions is commenced by the filing of a motion to compel under rule The motion must be specific as to what is being requested and why it is being sought. Fla. R. Civ. P (a)(2) requires a certificate of good faith that there has been an attempt to resolve that matter without the necessity of the motion and hearing. Further, local Administrative Rule requires that the attorneys meet and confer on all motions 4 and that a certification as to the meet and confer be filed as set forth in the rule. PRACTICE TIP#2: To assist the court, attach a copy of the matters at issue, to wit, if it is specific responses to interrogatory, include the question and the defective or inadequate answer that was provided. If it is Request to Produce, supply a copy of the specific request in question. If a Request for Admission is involved include the specific request and the specific response that was made. It is unnecessary to provide a copy of the complete set of pleadings if only a specific portion is at issue. Provide the courtesy copy to the court at least three court days prior to hearing. The Hearing: Keep in mind that the mere filing of the Motion to Compel has no legal effect. The matter must be set for hearing and a ruling obtained and an order entered to give force and effect to the ruling. It is advisable to bring an order with you to the hearing so the order may be entered immediately after the hearing. Orders that are not entered on the day of the hearing will invariably result in disagreements as to the rulings, arguments as to the form of the order and even further delays in having the requested information provided. Reasonable notice of the hearing must be given and the hearing must be coordinated. See Admin. Order Counsel must respond promptly to inquiries 3 The Admin. Order titled Administrative Order Establishing Ninth Judicial Circuit Court Civil Court Guidelines was entered on April 12, There are four exceptions: Motions for Summary Judgment, and Motions for Injunctive Relief without Notice, Judgment on the Pleadings and Motions to Permit Maintenance of a Class Action. 2

3 and communications from opposing counsel who notices the hearing and is attempting to schedule a conference. 6 PRACTICE TIP# 3: Some judges will rule on certain discovery motions without a hearing. Where there is a complete failure to respond, no timely objection has been made, and no extension of time to answer has been sought some courts will rule without setting the matter for a hearing. Waters v. American General Corp., 770 So.2d 1275 (Fla. 4 th DCA 2000) Check with the judicial assistant as to the procedures followed by the judge to whom your case is assigned. Sufficient time must be allotted to hear motions to compel especially if the motion involves multiple issues or discovery requests. If the hearing notice only allows five or ten minutes, it is likely that no more than one or two questions or items will be addressed. Providing the court with advance chamber s copies will assist the court with its preparation and allow more to be heard in the limited time available. PRACTICE TIP#4: Consider asking the judge to order compliance within a very short time 2 to 4 days from the date of the hearing. The party has already had the (1) amount of time provided by the rule, (2) any voluntary extension you have extended, and (3) the time it has taken to obtain and have the hearing. They should not need an additional 30, 20 or even 10 days. Also consider having the time run from the date of the hearing (the day the court ruled) and not the date of the order. PRACTICE TIP#5: Many times an issue will come up at trial or on a motion to continue based upon items or documents that have not been produce pursuant to discovery or answers that were not complete or were evasive. An incomplete or evasive answer is treated as a failure to answer. Many judges will require that the motion have been filed and called up and heard before allowing it to serve as a basis for the issuance of a sanction. The belief of some is that if the party filed the motion but never pursued it, that party must have abandoned the motion. Further, incomplete or non-responsive answers to interrogatories or questions in depositions or requests for admissions are useless when attempting to impeach or cross-examine during trial. AVAILABLE SANCTIONS The types of sanctions available are across the spectrum. The sanction imposed must be proportional to the violation. The court has the discretion to fashion sanctions that are appropriate and proportional for the violation. 5 However, an award for a violation of the discovery rules allows only the costs directly related to obtaining the order for compliance. Liebreich v. Church of Scientology Flag Service Organization, Inc., 855 So.2d 658 (Fla. 2d DCA 2003) 5 For example, a court upheld a fine of $500 a day for each day that a party refused to provide documents that were ordered to be produced. Mariner Health Care of Nashville, Inc. v. Baker, 739 So.2d 608 (Fla. 1 st DCA 1999). 3

4 A sanction can only be assessed against a party or individual who violated the applicable provision or order. In other words, an innocent party should not bear the brunt of a sanction for which they had no culpability. Edwards v. Edwards, 634 So.2d 284 (Fla. 4 th DCA 1994) Likewise generally the actions, or inactions, of an attorney, if there is no complicity by the client, should not result in a dismissal of a party s case or the striking of the parties defenses. 6 Spoliation of evidence, or intentional destruction of evidence, may under certain circumstances, result in sanctions ranging from restricting claims and/or defenses, allowing positive or negative inferences, up to and including dismissing causes of action and entering what amounts to a default against the defendant. Much will depend on whether the loss or unavailability of the evidence was intentional or inadvertent. The extent of prejudice is the a key factor. Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005) [Legions of cases, with varying fact specific situations, have both applied and distinguished Martino and its progeny.] The remedy or sanction must be crafted on a case by case basis based on the violation and the extent of prejudice. Awards of sanctions, such as costs and attorney s fees, for the bringing of the motion are not automatic even though the rule provides the court shall require the party to pay the moving party the reasonable expenses incurred. Remember, a prerequisite is the contemporaneous filing of a certification under 1.380(a)(2) certifying that the movant, in good faith, has conferred or attempted to confer with the person or party failing to make the discovery. If the Court finds under 1.380(a)(4) that a certification was not made, or not made in good faith, or if the opposition to the motion was justified or the award of expenses would be unjust, the Court can decide not to make such an award. Conversely, the party opposing the motion to compel, if successful may be entitled to the award of fees and costs from the moving party. If the motion is denied the court shall require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred (a)(4) Once again the court is given the discretion to not make such an award if the motion was justified or the circumstances would make it unjust. The Court also has the ability to sanction both sides. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred (a)(4) Certain sanctions are available through other specific rules or statutes. A court may enter, for example, a default under Fla. R. Civ. P (b) if a party fails to comply with an order on discovery. However, a finding of willfulness or bad faith must be made and notice of the hearing must be provided. Neder v. Greyhound Financial Corp., 592 So.2d 1218 (Fla. 1 st DCA 1992) 6 A Kozel analysis will be required to be conducted by the court. Infra. 4

5 Mention must be made of actions or inactions by the attorney that could have a profound effect on the client s case. Appellate courts have almost unanimously held that where actions of an attorney are so severe that the court is considering dismissing the case or striking the pleadings a Kozel 7 inquiry must be made. The mere failure to make the inquiry and finding on the record will result in a reversal. The factors that must be addressed and analyzed are whether the: 1- attorney s disobedience was willful, deliberate, or contumacious, rather than neglectful or as a result of inexperience; 2- attorney had been previously sanctioned; 3- client was personally involved in the act of disobedience; 4- delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5- attorney offered reasonable justification for noncompliance; and 6- delay created significant problems of judicial administration. SANCTIONS FOR VIOLATION OF COURT ORDER The entry of an order on a motion to compel changes the ball game substantially. A simple review of Fla. R. Civ. P (b) titled Failure to Comply with Order demonstrates the dramatic differences and the increased sanctions available. While a failure to comply with the rule requirements may entitle the party to an award of cost and attorney s fees, failure to comply with an order of the court may allow sanctions which include, but are not limited to: 1- deeming certain matters established as a matter of law, 2- refusing to allow parties to support or refute designated claims or defenses, 8 3- striking pleadings 9 or parts thereof, 4- staying further proceedings until compliance occurs, 5- dismissing the action 10 or parts thereof, 6- rendering judgment or entering a default. 11 and/or 7- treating the matter as a contempt of court. REQUESTS FOR ADMISSIONS 7 Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993). 8 Striking of a witness is similar to striking pleading and dismissing a case. The violations must be extreme and not remediable in another manner. See, Kaye v. State Farm Mut. Auto Ins. Co. 985 So.2d 675 (Fla. 4 th DCA 2008). 9 Striking pleadings can be equal to a dismissal and should be used only when actions were deliberate and willful. Chmura v. Sam Rodgers Properties, Inc., 2 So.3d 984 (Fla. 2 nd DCA 2008) 10 Dismissing an entire action is an extreme and drastic measure and should be used only when the evidence on the record shows that the actions leading to it were both willful and deliberate. Ham v. Dunmire, 891 So.2d 492 (Fla. 2004). It should not be used if lesser sanctions will suffice. Lahti v. Porn, 624 So.2d 765 (Fla. 4 th DCA 1993) 11 It must be remembered that while a finding of failure to willfully and purposely comply with the requirements of a court s pretrial order is sufficient for the entry of a default, notice must still be provided of the application for the entry of a default. Camerota v. Kaufman, 666 So.2d 1042 (Fla. 4th DCA 1996). 5

6 Motions directed to failures to admit matters that should be admitted can result in additional sanction. It is addressed specifically in Fla. R. Civ. P (c). Costs and attorney s fees are awardable. It is important to note that the rule was amended in 2003 to allow a court to rule on a motion of this nature at any time during the pendency of the case, and one does not have to wait until the end of the case. The court must order reimbursement of the expense unless the court finds: (1) the request was objectionable, (2) the admission was not of importance to the case, or (3) there was some good reason for failing to admit it. PRACTICE TIP#6: It should be remembered that Request for Admissions can be used to assist in evidentiary matters also. Parties can be asked to admit the genuineness and/or accuracy of documents, the existence of documents or contracts, or any other evidentiary matter. Further contested issues can be eliminated by the judicious use of requests for admissions. Accordingly, it may be necessary to force opposing counsel to accurately respond to the request and, if they do not, to invoke the authority of the court. CONTEMPT OF COURT There are, of course, two types of contempt of court, criminal 12 and civil. Within each there is direct and indirect contempt. While direct criminal contempt can arise in the context of a civil case, generally parties will be dealing with indirect civil contempt as a means to obtain compliance with either discovery or an order of the court. Contempt of court is an inherent power of the court. However, it is also referenced in the discovery rules in certain specific situations. A party or witness who fails to comply with a court order to answer questions may be held in indirect civil contempt as provided under Fla. R. Civ. P (b)(1) The obvious purpose is to entice the recalcitrant party to answer the questions, provide the documents, or perform the act that is required of him or her. The contemnor always has the ability to purge the contempt by simply responding to the questions, request or completing the action. Contempt can be utilized when one fails to answer questions at a deposition (1.380), failure to provide discovery (1.380), fails to comply with an injunction (1.570), fails to respond to interrogatories (1.380), fails to obey a subpoena (1.410), in enforcement of a judgment (1.570), as well as filing when an affidavit is filed in bad faith involving a Motion for Summary Judgment (1.510). Of course, any violation of court order is also subject to contempt proceedings. The process is commenced for indirect civil contempt with the issuance of Rule to Show Cause Why (name) Should Not Be Held in Contempt of Court (RTSC). The RTSC must set forth the specific allegations and/or violations and reference the order that was violated. It should be personally served on the individual so that personal jurisdiction is not in doubt especially if incarceration is a possibility. The Court will then conduct a hearing on the RTSC and, unless good cause is shown, will find the party or witness in 12 See Fla. R. Crim. P and

7 contempt and proceed accordingly. It must be remembered that the purpose is to obtain compliance, not for punishment, so an ability to purge must be contained in any contempt sanction finding civil contempt. PRACTICE TIP#7: The purge provision should be contained within the actual RTSC with specific instructions as to what must be done to eliminate the need to appear at the hearing on the sanction. For example, if it is a failure to appear at a deposition, a telephone number of the attorney should be included with a statement that if the witness will call and coordinate a date, place and time for the deposition and appear and give that deposition at that time presumptively prior to the hearing -- the RTSC will be unnecessary and will be cancelled. PROFESSIONALISM POINTER: An attorney must do everything possible to avoid being in a position of being held in contempt of court. In addition to the obvious sanctions that can be imposed, fines and incarceration, the blemish on the record can have far reaching affects. Board certification can be adversely affected by a finding of contempt of court. Membership in prestigious organizations such as ABOTA can be placed at risk. And financially, the premium on legal malpractice insurance can be increased or the insurance even cancelled as a result of this ruling. Lastly, one s reputation in the legal community amongst lawyers and judges will suffer. PRACTICE TIP#8: If the RTSC is going to be served on the individual, as it should, it is helpful to have the necessary information on the RTSC that will later be necessary if a writ of bodily attachment is issued when the person does not appear at the hearing. This includes the person s full name, last known address, date of birth, social security number, height and weight, ethnicity and sex. FLORIDA STATUTE : In any discussion of sanctions, one must consider Florida Statute While neither a sanction in response to a motion to compel nor a contempt matter, it does provide a readily available sanction that can be utilized. This is a statutorily created sanction and, therefore, must be strictly construed. The requirements must be followed specifically. The statute can be evoked upon the court s initiative or motion of any party... It allows for the award of both attorney s fees and prejudgment interest to be awarded. 13 The award is assessed against both, equally, the losing party AND the losing party s attorney. The general purpose is to dispose of cases that should not be brought or defenses that should not have been raised as no legal or factual basis existed at the time of filing same. If, however, a good faith basis existed at the time of filing for extension, modification, or reversal of existing law or the establishment of new law or if the 13 The statute also contains language in subsection (2) allowing recovery of other loss resulting from the improper delay. 7

8 attorney acted in good faith, based on the representations of [the] client the Court does not have to award sanctions. A condition precedent to sanctions available under this statute is what is sometimes referred to as the safe harbor provision. Under Fla. Stat (4) the moving party must first serve, but not file, a 21 notice of its intent to proceed under this statute and afford 21 days for the withdrawal of, or correction to, the challenged document. Failing any action to cure the alleged unsupported claim or defenses the motion can be filed and the court can rule after a hearing. CONCLUDING THOUGHTS The judicious use of Motions to Compel and requests for sanctions is appropriate and encouraged only when absolutely necessary. But it is only a vehicle of last resort. All efforts should be made to resolve matters by agreement, consensus, and/or discussions. It is only when the parties are truly at an impasse on the issue that motions to compel should be filed and hearings scheduled. If a valid legal reason exists for not complying with a discovery request, counsel is certainly free to file the motion to compel. Caution, however, must be exercised; if the motion is overruled the moving party may well be taxed with attorney s fees and costs. Further, if the matter has no legal or factual basis, and is being filed for purposes of delay, the attorney may well be assessed the fees and costs. Violation of a court order is a serious matter and should never occur without serious consideration of the potential consequences. Motions to Compel and orders on these motions have a purpose in discovery, but should be sought rarely and only when necessary. The corollary, of course, is that courts expect attorneys to be prepared. If opposing counsel, or the opposing party, is impeding preparation the trial judge will expect, if not require, that you as the attorney have made every effort to obtain the requested item(s) especially if you are requesting the court to take some timely action, i.e., a continuance. Lastly, the filing of a motion to compel and/or to request sanctions or even contempt is an attorney s decision, not the clients. Both legal and professionalism factors determine when the decision to do so is legally appropriate, ethically necessary, and professionally required. Do not take such action and then blame it on the client. You as the attorney bear the responsibility. Judge John Marshall Kest 14 1/31/13 Copyright 14 Comments, recommendations, "practice tips," and "professionalism pointers" are solely those of Judge John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual procedures, policies and requirements of that judicial division or judge. 8