Motion for Sanctions for Failure to Comply with Discovery in Arkansas

Background

“There is no requirement under Rule 37, or any of our rules of civil procedure, that the trial court make a finding of willful or deliberate disregard under the circumstances before sanctions may be imposed for the failure to comply with the discovery requirements.” (Coulson Oil Co. v. Tully, 84 Ark. App. 241, 251-52 citing National Front Page, LLC v. State (2002) 350 Ark. 286; Viking Ins. Co. v. Jester (1992) 310 Ark. 317; see also Rodgers v. McRaven's Cherry Pickers, Inc. (1990) 302 Ark. 140.)

General Information for Complaints and Motions

“Arkansas Rule of Civil Procedure 37 provides two methods of imposing sanctions. Under Rule 37(b), sanctions may be imposed for failure to comply with an order compelling discovery.” (Coulson Oil Co. v. Tully (2003) 84 Ark. App. 241, 253 citing id.)

Rule 37(d) also provides that sanctions may be imposed for failure to respond to interrogatories or other discovery requests. Sanctions issued under Rule 37(d) do not require an order compelling production as a prerequisite.” (Coulson Oil Co. v. Tully (2003) 84 Ark. App. 241, 253.)

Imposition of Severe Sanctions

“The severe sanctions that may be imposed include the striking of a claim or a defense.” (Id.) “In David Newbern and John Watkins, Arkansas Civil Practice Procedure, § 17-13, at 263 (3d ed. 2002), the authors state:

‘Obviously, some of the available sanctions for failure to comply with a discovery order may be devastating to a claim or defense. Dismissal and judgment by default fall into that category, as do orders refusing to permit a position to be advanced or supported and prohibiting the introduction of designated evidence.’”

Futher, “[t]he Supreme Court has described sanctions of this type as ‘extraordinary’ and said that they should be used ‘sparingly and only when other measures fail because of the inherent danger of prejudice.’ However, the Court has ‘repeatedly upheld’ the discretion of trial judges "in fashioning severe sanctions for flagrant discovery violations.”

(Coulson Oil Co. v. Tully (2003) 84 Ark. App. 241, 252 quoting David Newbern and John Watkins, Arkansas Civil Practice Procedure, § 17-13, at 263 [3d ed. 2002].)

Standard of Review and Burdens of Proof

“The imposition of sanctions for failure to provide discovery rests in the trial court's discretion; the supreme court has repeatedly upheld the trial court's exercise of such discretion in fashioning severe sanctions for flagrant discovery violations.” (Coulson Oil Co. v. Tully (2003) 84 Ark. App. 241, 251 citing Calandro v. Parkerson (1998) 333 Ark. 603.)

The Court’s Decision

“The supreme court has upheld the imposition of Rule 37(d) sanctions in the absence of a prior order to compel production where a defendant has failed to answer interrogatories or otherwise failed to comply with discovery.” (Coulson Oil Co. v. Tully (2003) 84 Ark. App. 241, 254-55.)

“Under Arkansas Rule of Civil Procedure 37, if a party fails to comply with an order compelling discovery, the court ‘may make such orders in regard to the failure as are just,’ and may enter ‘an order striking out pleadings or parts thereof.’” (Lake Village Healthcare Center, LLC v. Hatchett (2012) 407 S.W.3d 521, 526 citing Ark. R. Civ. P. 37(b)(2)(C) [2011].)