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Langham: Discovery Sanctions

By David Langham

Wednesday, January 31, 2018 | 736 | 0 | min read

It has been a few years since I took the bench in Pensacola, more than 16, to be precise. A great deal has changed in Florida workers' compensation over that period. And, perhaps there are things that recur. Through intent or inadvertence, possibly the same disputes and conflicts arise repeatedly.

Judge David Langham

Judge David Langham

One area that seems to generate a fair amount of dispute is the seemingly simple task of discovery. Discovery is the process that litigants go through to learn more about the claims or defenses of their opponent(s). Once a dispute arises, the path of litigation is begun, and these two (or more) parties will travel that path for some distance. Some will travel to the end of the path, which is a judge deciding the merits of their claims and defenses. 

The majority will not travel the full length of the path. They will gain perspective, accumulate knowledge, and most will reach some resolution of their disputes before trial. How they glean that knowledge may be in a variety of ways, from examining documents, from interacting with a mediator who presents a different perspective, from accumulating more information through medical examinations and expert opinions. However information or perspective is gleaned, the accumulation of information often leads to resolution. 

Over time, the quantity and quality of information may change. The perspectives of the parties involved in the litigation may change. And, the influence of the passage of that time itself may change the way a party feels about the dispute. Time has a way of wearing people down sometimes. 

Discovery in Florida workers' compensation is governed by the Florida Rules of Civil Procedure. Not because The Florida Supreme Court (which adopted the rules) can dictate process in our administrative process; it cannot. But the administrative rules in this process have adopted the civil rules for this purpose (see Rule 60Q6.114).

Anyone litigating a workers' compensation claim would be well advised to read Civil Rules 1.280 through 1.390, but ignoring 1.340 "interrogatories" and 1.370 "requests for admissions," as those are not used in workers' compensation proceedings. 

Among the most common discovery tools is the production of documents. In workers' compensation, an injured worker may want to review the employer's payroll records to assure a proper calculation of pre-injury wages. An employer may want to review medical reports the worker possesses.

Not all of the documents that are reviewed will prove anything; they will not all be be relevant to an issue in the case. But, to determine whether relevant or not, the documents will have to be exchanged and reviewed. That is a large part of the process that is discovery. 

An important aspect of this exchange of information is that it usually all occurs with no involvement if the assigned judge. When the parties to a case cannot accomplish this exchange of information, they may seek "relief" from the assigned judge by filing a motion (see Rule 60Q6.115(1)).

This may be because someone will not provide the information requested (motion to compel), or because someone does not believe he should have to provide some information (motion for protective order). This may be to resolve any dispute that the parties have regarding discovery.

The parties should discuss these disputes. If they find they must file a motion, they should provide details and legal authority for why an order should be entered favoring their argument or position. 

When the parties require judicial assistance with the discovery process, when a motion must be filed, that may involve expenses. Time is required to research and draft a motion regarding discovery. The Civil Rules contemplate this in Rule 1.380(4). This rule allows the judge to order a party to both produce the requested documents, or answer the questions, and to "pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees."

Thus, the party that has to file a motion and seek involvement of the judge may be paid attorney fees and/or other expenses by the party (or counsel) that has failed or neglected to participate in discovery and thus required a motion to be filed. An important caveat of that "sanction" is that a judge may not order such payment (sanction) if he finds: 

(1) movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, (2) that the opposition to the motion was substantially justified or (3) that other circumstances make an award of expenses unjust.

Because a motion is filed does not mean that the party filing it will be awarded attorney fees. The rule does not mandate the order of fees, but permits such an order. A party who fails to participate in discovery may be ordered to pay the attorney fees associated with compelling that discovery.  

However, such a sanction may be imposed only "after opportunity for hearing" (Rule 1.380(4)). So, before a party is ordered to pay such attorney fees or other expenses as a sanction for discovery, that party will have an opportunity to explain to the judge what circumstances or facts might support the judge making a different decision. An award of sanctions must involve an "opportunity for hearing."

And, that returns me back to my first day presiding over the motion calendar in Pensacola. Motions back then were primarily set for hearings on Thursday afternoons. It was a busy docket, and lawyers would begin gathering during the lunch hour, prepared for a 1 p.m. start. On many Thursdays, there would be dozens of motions scheduled for hearing; they were busy days. 

A number of disputes were about discovery, and in many there was a request for payment of attorney fees as a "sanction." In some, there was no excuse for having failed to produce documents. Certainly, people overlook things, forget, become overwhelmed. In those circumstances, a hearing is rarely required because when a motion is filed or when "a good faith effort was made" to obtain the documents, the other attorney would be reminded and the discovery would proceed. It is troublesome that people forget things, but we are all human and we have to accept that we forget things. 

In some, there was no excuse for the complained-of failure to comply with a discovery request. There had been a request for documents; the attorney had called and followed up when they were not received; a motion had been prepared and served; a motion hearing had been noticed. And, after that series of reminders and passage of significant time, the response was often, "My client has just not provided me the documents, Judge." 

In other instances, there are valid objections or reasons why discovery has not occurred. I remember one case vividly. I heard from one party about the simple request for documents he had sent, and his efforts to follow up. The documents were not extraordinary or exotic. The requesting party had asked, reminded, cajoled and pleaded.

When the other party spoke, he described how Hurricane Katrina had struck his office. He provided a picture of a foundation where the office had been and said he had no idea where any of their former possessions were. The storm had wiped out records, furniture, everything. There was no paper to produce. 

In some instances, sanctions may be appropriate. In other circumstances, not so much. The argument over the Katrina-destroyed office has struck with me over the years. 

By the time the motion gets to a judge, there should have been discussion among the parties or attorneys. The rule requires that "a good faith effort was made." Hopefully, motions are not filed or needed when someone simply forgets, or when documents simply do not exist. And, hopefully, everyone involved is dealing with one another in a professional and communicative manner.

Parties and their attorneys need to speak to one another and discuss their differences before they proceed with a motion. Over years of litigation experience, I think that maintaining communication and mutual respect are among the most critical roles of an attorney. 

But despite those best efforts, sometimes it is necessary for a judge to become involved in a discovery dispute. It is important to remember that in such a dispute a party may ask for attorney's fees or other expenses as a "sanction," and that in some circumstances a judge may find that appropriate and grant the request after the due process of an opportunity to be heard about that imposition of sanctions.  

The critical point is not that sanctions "will" occur. The point is that they "can" occur. When counsel and parties remain diligent and communicate with each other professionally, they may never be needed. Unfortunately, however, there may be circumstances in which they are necessary.

When they are necessary, they should be specific to the behavior that is inappropriate and should be "limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated" (Rule 60Q6.125(5)).

In other words, in those rare instances when sanctions are needed, they should be enough, but should be just enough to deter the behavior.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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