Court Gives Defendants One More Chance to Comply with Discovery Requests or Face Default Judgment: eDiscovery Case Week

eDiscovery Case Week concludes today with a question: How many chances should parties be given to respond to discovery requests before they receive a default judgment sanction?  In this case, the answer is at least one more.

In Burress v. Mr. G&G Trucking, LLC, No. 19-cv-791-jdp (W.D. Wis. July 31, 2020), Wisconsin District Judge James D. Peterson gave defendants Aguilera and Rivadeneria “a final opportunity to respond to plaintiffs’ discovery requests”, stating that “[i]f they fail to do so by the deadline, the court will grant plaintiffs’ motion” for sanctions that requested the court enter judgment against them on the issue of liability.

Case Background


In this case involving a car accident involving the defendants’ trucking company that injured the plaintiffs and their minor children, defendants Aguilera and Rivadeneria were taking turns driving the truck that the plaintiffs claimed caused the accident.  The plaintiffs served interrogatories and requests for production of documents on Aguilera and Rivadeneria in December 2019. After neither of them responded to these discovery requests, plaintiffs filed a motion to compel in February 2020, which was granted and Aguilera and Rivadeneria were ordered to respond to all outstanding discovery requests by March 27.

On March 27, defendants’ counsel sent plaintiffs some documents that had been provided by Rivadeneria before plaintiffs had served their discovery, but did not directly respond to any of plaintiffs’ outstanding discovery requests, stating he had repeatedly attempted to contact Aguilera and Rivadeneria but had received no response, which resulted in the plaintiffs motion for sanctions.

Judge’s Ruling

Judge Peterson stated: “Although entry of default judgment as a discovery sanction is a ‘draconian’ remedy, it ‘is an appropriate discovery sanction against a party who has shown ‘bad faith, willfulness, or fault.’’”  Analyzing the defendants’ response to the motion for sanctions, Judge Peterson stated: “Defendants offer several arguments against the entry of default judgment. None are persuasive.”


Rejecting the defendants’ arguments that default judgment is not warranted because plaintiffs have not shown that Rivadeneria and Aguilera acted in bad faith, Judge Peterson stated: “Rivadeneria and Aguilera’s failure to participate in the case is serious enough to warrant this sanction, even without direct evidence of bad faith.”

Rejecting the defendants’ arguments that plaintiffs’ need for Rivadeneria and Aguilera’s discovery responses is not extreme enough to warrant default judgment, Judge Peterson stated: “plaintiffs’ discovery requests seek information that is fundamental to the prosecution of their case. Plaintiffs are significantly prejudiced by the failure to respond.”

Judge Peterson also rejected arguments from the defendants that 1) entry of default judgment against Rivadeneria and Aguilera will prejudice Mr. G&G because of plaintiffs’ allegations of vicarious liability against Mr. G&G, stating: “It’s not unfair that Mr. G&G, rather than plaintiffs, will bear the burden of the drivers’ failure to participate in the case” and 2) that some of plaintiffs’ claims involving allegations that Aguilera lacked a commercial driver’s license were addressed by his producing that license, stating: “the fact that there is some potential defense on the merits does not mean that default judgment is not an appropriate sanction for Aguilera and Rivadeneria’s complete failure to participate in the case.”  And he rejected the defendants’ request for leniency over the fact that English was not their first language by observing that “plaintiffs provide an email that Rivadeneria sent to plaintiffs’ counsel in which he states that he understands that he is being sued for negligence” and that “defendants haven’t provided any evidence that Rivadeneria and Aguilera do not understand their obligations to respond to discovery responses and to comply with court orders.”

Noting that “District courts are encouraged to warn defendants before granting default judgment against them under Rule 37”, Judge Peterson stated: “The court will give Rivadeneria and Aguilera a final brief opportunity to fully comply with Judge Crocker’s order. If they fail to do so within the deadline below, the court will grant plaintiffs’ motion, strike Rivadeneria and Aguilera’s answers, and enter judgment against them on the issue of liability.”

So, what do you think?  Should the judge have given the defendants one more chance or should he have proceeded with the default judgment sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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