DISCOVERY SANCTIONS: TAR BABY WARS

Litigating about litigating is the most expensive battle in a lawsuit because it does not directly decide the case on the factual merits.  Discovery disputes are the worst because they usually decide the least number of issues between the parties.

In Padron v Watchtower Bible and Tract Society of NY, Slip Op., (CA App., 2017), the trial court imposed a sanction of $4,000 per day for non-compliance with a document discovery order of the court.  The appellate opinion affirming the trial court’s order laboriously considered and rejected the denomination’s arguments against production of reports to the denomination by local congregations over many years regarding sexual abuse of children.  The Plaintiff asserted the denomination allowed accused officers to transfer from one congregation to another even though the denomination knew of multiple accusations against the transferring officer.  The discovery sanction by the trial court came about after the denomination had unsuccessfully challenged the discovery sought by the Plaintiff but openly refused to obey the court’s order.  It might also be noted that the trial court appointed a discovery referee (aka “special master”) and it was the referee’s recommendations the trial court adopted in its order.  The denomination did not help its argument by making inconsistent arguments in different proceedings about whether it had the documents sought.

Denominations should probably use a single discovery coordinating law firm or law department rather than only the local law firm assisting with defense of the case.  Such coordination would reduce the likelihood of internal inconsistency in discovery positions and reduce the cost of the learning curve regarding denominational document flow.  Likewise, a single qualified technology vendor can assist the denomination with searches of electronic document storage and reduce the risk of inconsistent results from one case to the next.  One issue that the denomination lost was limitation of the document searches to congregations in the state of California, the location of the trial court, the Plaintiff and the relevant congregations.  Once a discovery issue hops state boundaries national coordination becomes less expensive than fragmented responses.

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