Flagrant Abuse of the Discovery

Flagrant Abuse of the Discovery Process Leads to Sanctions: eDiscovery Case Law

In Boshears v. Polaris Eng’g, Inc., NO. 3:22-cv-00053 (S.D. Tex. Mar. 20, 2023), Texas Magistrate Judge Andrew M. Edison sanctioned plaintiff’s counsel over $5,000 in defendant fees incurred for “flagrant abuse of the discovery process” for having “repeatedly violated the discovery orders I issued in this matter”.

Case Discussion

In this employment discrimination lawsuit, Judge Edison began his order by stating: “There are few things that I truly despise. The short list includes meatloaf, the Ohio State Buckeyes, and hangovers. It also includes motions for sanctions. It is no exaggeration to say that I hate, hate, hate motions for sanctions…All too often, lawyers file motions for sanctions for no legitimate reason; they simply want to obtain some perceived tactical advantage in a case. That is not the situation here.”

The violations cited by Judge Edison included:

  • Failing to comply with the order that “Plaintiff must fully answer and provide responsive documents to discovery protocols by February 1, 2023.”
  • Failing to comply with the order to “execute the employment authorization and the medical records authorization by January 27, 2023.”
  • Failing to supplement the plaintiff’s interrogatories and verify those interrogatories, as ordered.
  • Failing to comply with the order to “provide all responsive documents to [Polaris] by February 20, 2023.”

Judge’s Ruling

Judge Edison stated: “In recent months, I have spent a considerable amount of time working through discovery issues in this case. I held numerous hearings and issued several orders, all aimed at making sure that Boshears complied with his discovery obligations. He has not done so.” He also noted that he could “write pages and pages about how Boshears’s attorney has made a mockery of the discovery process”.

Continuing, Judge Edison stated: “Boshears’s counsel acknowledges that he has failed to comply with my discovery-related orders. He tries to deflect blame to a busy trial schedule, an unforeseen client emergency in another matter, and technical issues which resulted in him losing a draft of supplemental discovery responses…None of these excuses are satisfactory. The fact remains that Boshears’s counsel repeatedly ignored or flouted court orders. It is incumbent on a trial lawyer to make sure that he has his house in order and can devote the attention needed to a case…If Boshears’s counsel feels overwhelmed by this matter, he should hand it off to another attorney to handle. That attorney should have the time and resources to devote to this case.”

In sanctioning plaintiff’s counsel, Judge Edison stated: “In my view, sanctions should only be imposed ‘as a last resort’ when ‘the conduct of counsel is so egregious and so unacceptable.’…Unfortunately, this is one such case. As I have written before: ‘[E]nough is enough. Disobeying a district court’s discovery order is conduct that must be stopped.’…For only the third time in my five years on the bench, I will award sanctions for a flagrant abuse of the discovery process.”

Noting that the defendant filed a declaration in support of its request for attorney’s fees, Judge Edison stated: “I find those fees reasonable, and I order Boshears’s counsel to pay a $5,082.75 sanction to Polaris.”

Judge Edison concluded by saying: “In closing, let me reiterate that this order brings me no joy or satisfaction. In my view, it is a sad day when sanctions are imposed. I leave the parties with these words, which come from an order I issued several years ago imposing sanctions: ‘I am hopeful that this order, and the accompanying sanctions, will put an end to such disgraceful conduct. It is my sincere wish that Plaintiff’s counsel will pursue the highest ideals of our noble profession, and never find [himself] in this position again.’”

So, what do you think? Do you think plaintiff’s counsel or the plaintiff himself should have been responsible for a “flagrant abuse of the discovery process”? 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, an Affinity partner of eDiscovery Today.

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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