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Friday, February 25, 2011

Answer Up Or Face The Consequences

By Gary Beaver

The North Carolina Court of Appeals has addressed the sanctioning of parties for discovery failures in two recent cases. In December 2010, in Lovendahl v. Wicker, 702 S.E.2d 529, the court upheld sanctions ordered against a defendant in a civil case for failing to answer questions at a deposition. The sanctions were imposed under Rule 37(b) of the North Carolina Rules of Civil Procedure which are imposed only for failure to comply with a court order. Defendant had a criminal case pending and was trying to avoid answering questions while the criminal case proceeded. Defendant had asserted two affirmative defenses in the civil case -- contributory negligence and gross contributory negligence -- which the plaintiff had to investigate. Defendant argued that sanction were not appropriate because the plaintiff never moved to compel. However, she had sought a protective order and in denying that motion, the court had ordered her to "submit" to the deposition. Failing to answer questions violated that order and supported the sanction of striking the affirmative defenses.

In January 2011, in First Mount Vernon Industrial Loan Assovication v. Prodev XXII, LLC, the court affirmed a finding that a nonparty witness was in contempt of court for failing to appear for a deposition after being properly served with a subpoena. However, the court reversed the trial court's imposition of monetary sanctions based on Rule 37(d) of the North Carolina Rules of Civil Procedure because that rule applies to parties. The court noted that if the motions against the witness had been motions to compel, the trial court could have granted those motions and imposed attorneys' fees and expenses under Rule 37(a)(4). Rule 45(e)(2) provides for attorney fees against a witness who opposes a subpoena and the opposition is unreasonable or for improper purposes such as delay but the witness never objected to or moved to quash the subpoena. The court suggested that the General Assembly may want to address this situation to allow imposition of fees and expenses where a witness remains opposes only by not showing up for the deposition.

The courts will act with their full authority to require discovery but they will not exceed the specific authorization they have to impose sanctions.

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