Ah, discovery. To borrow from A Tale of Two Cities, discovery is the best of times and the worst of times.
Personally, I love discovery. I love it because I’m a divorce attorney, so everyone lies to me all the time. Discovery is a great way to tease out the lies and gather evidence to prove the lies.
Discovery is also a pain. It can take a long time to complete and end up being expensive (usually because the other side refuses to answer or provides really obviously inadequate answers).
On the whole, discovery is a necessary tool that we should use regularly during litigation.
When it comes to divorce attorneys, I am in the minority on this. Most divorce attorneys don’t engage in discovery beyond putting together a financial declaration, and, maybe, maybe, putting together initial disclosures, which are all of two pages.
This lack of experience with discovery can lead to some pretty bad situations in divorce and child custody cases. A prime example of such a situation is Ford v. Ford, the latest divorce case from the Utah Court of Appeals.
The facts are pretty straightforward.
In 2012, Paul Ford filed a motion to adjust the child support, parent-time, and property distribution, all of which resulted from a 2008 divorce from Traci Ford. Traci filed a motion for order to show cause for unpaid child support.
No hearing took place until June 2014. Before the hearing, but after the normal discovery period lapsed, Paul served Traci with discovery requests. Traci timely responded and sent Paul discovery requests. As the Court of Appeal put it: “[Paul] ignored [Traci]’s requests.”
Traci followed up with Paul, providing him additional time to respond, and letting him know if he did not, she would file a motion under Utah Rule of Civil Procedure 37 asking that his pleadings be stricken as sanction. Paul ignored the letter.
At the ensuing evidentiary hearing, the Judge addressed Traci’s motion to strike. Paul said he ignored Traci’s discovery (1) because she sent it after the discovery period had ended, and (2) because Traci sent twelve requests for admission instead of the ten allowed under the rules.
After a brief colloquy with Paul (or, more likely, Paul’s attorney) about his lack of discovery responses, the judge offered the following solution: continue the hearing if Paul would pay all attorney’s fees incurred trying to get discovery and preparing for the evidentiary hearing. Paul declined the solution.
The judge struck Paul’s petition to modify in total and heard evidence on Traci’s order to show cause. The judge also deemed admitted all of Traci’s requests for admission Paul decided not to answer.
Paul appealed the District Court’s decision, asserting: (1) the District Court erred by requiring him to respond to Traci’s discovery requests, and (2) the District Court’s sanction was overly harsh.
Too Many Requests for Admission
The Court of Appeals began by noting discovery decisions are reviewed under an abuse of discretion standard (never good if you want to overturn a court’s ruling). In fact, the Court of Appeals reiterated the standard that it would only overturn District Court discovery sanctions “only in cases evidencing a clear abuse of discretion.”
In addressing Paul’s first argument (he didn’t need to respond to Traci’s discovery requests because she included twelve requests for admission instead of the ten allowed under Rule 26), the Court of Appeals noted Rule 36 obligates parties to respond within twenty-eight days. If a party does not, the matter is admitted. Parties who do not respond “do so at their own peril.”
So, the District Court could not have refused to deem admitted the unresponded to request for admission. It was obligated to deem them admitted. To get out from under the admissions, Paul would have had to file a motion, which he failed to do.
Ultimately, the District Court was well within its authority to strike Paul’s pleadings.
Paul’s second and final argument (the District Court’s sanction was unduly harsh) fared no better than his first.
Under Rule 37, the District Court has a myriad of potential sanctions at its disposal, including striking pleadings. And “failure to respond in the appropriate time frame may subject the noncomplying party to sanctions under Rule 37.”
The Court of Appeals puts these two things together and, in essence, says the District Court can do what it wants and we’re not going to mess with it.
The Court then went on to make a particular finding that, under the circumstances, the District Court’s sanction was, in fact, not harsh. Even if it were, the Court reasoned, a “district court may impose a harsh sanction on a party and still not abuse its discretion.”
- Running through the Court’s analysis is fact Paul propounded discovery and Traci responded. He refused to do likewise. Lesson: what’s good for the goose is good for the gander.
- Always answer discovery, and do it completely. When a court thinks you are messing around with discovery and hiding the ball, it will punish you, severely.
(Here’s the opinion: Ford v. Ford.pdf.)