When you think of sanctions, your mind probably goes to Rule 11 of the Rules of Civil Procedure. But what about Rule 37(b)(2)? It says that:
if a party . . . fails to obey an order to provide or permit discovery, . . . a judge of the court in which the action is pending may make such orders in regard to the failure as are just . . . . In lieu of any [such order] or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney’s fees, caused by the failure . . . .
Judge Murphy applied the teeth in Rule 37 to sanction two of the parties -- Allison and Stathopoulos -- in an Order this week in BOGNC v. Cornelius Self-Storage LLC to the tune of almost $10,000 for failing to comply with an earlier discovery order in the case.
He had entered that Order in December 2011, ruling that the attorney-client privilege did not apply to communications between Allison (an attorney) and Stathopoulus, both of whom were LLC members. He directed those two parties to produce the documents they had withheld on the basis of privilege within thirty days, and to produce a privilege log for documents they continued to maintain as privileged within the same time frame. If disputes continued, Allison and Stathopoulus were to deliver the documents in camera for the Court's review.
The deadlines passed without compliance. Although the Order did not state a deadline for production of the documents for an in camera review, they were not provided until eight months after the entry of the Order. Judge Murphy said that the production was "riddled with deficiencies" and the parties had acted in "blatant disregard" of his Order. Order ¶18.
The sanctions were equivalent to the reasonable expenses incurred by the Plaintiff as a result of the parties' failure to comply with the Court's 2011 Order, which were ruled to be $9,614.00.
It is worth mentioning that these sanctions didn't run against the lawyers for Allison and Stathopoulus. They ran directly against the parties.