Bass, Berry & Sims attorney Chris Lazarini provided insight on a case that was dismissed following several missteps by the plaintiff during the discovery process. Since the plaintiff clearly demonstrated discovery abuse, the Sixth Circuit affirmed the dismissal after considering the following factors: (1) whether the party's discovery failings are due to willfulness, bad faith or fault; (2) whether the opposing party was prejudiced; (3) whether the recalcitrant party was warned that continued failure to cooperate would lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was granted.

Chris provided the analysis for Securities Online Litigation Alert (SOLA). The full text of the analysis is below and used with permission from the publication.

Norris vs. MK Holdings, Inc., No. 17-6078 (6th Cir., 5/22/18) 

*A case may be dismissed upon a clear showing of discovery abuse. 

**Factors to consider when determining whether dismissal is an appropriate sanction for failure to comply with discovery obligations are: (1) whether the party's discovery failings are due to willfulness, bad faith or fault; (2) whether the opposing party was prejudiced; (3) whether the recalcitrant party was warned that continued failure to cooperate would lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was granted. 

Plaintiff, individually, as trustee of multiple family trusts and on behalf of her business, sued MK Holdings and Regions Financial Corporation, seeking to recover losses in certain bond funds that lost significant value during the Financial Crisis. Following Plaintiff's repeated discovery missteps, the magistrate judge recommended dismissal, and the district court agreed. On appeal, the Sixth Circuit rejects Plaintiff's abuse of discretion arguments and affirms dismissal for Plaintiff's repeated discovery abuses.

First, the Court finds a clear pattern of willful failure to comply with the discovery rules and orders of the district court. Here, Plaintiff failed to timely respond to Defendants' discovery requests, waiting two months after the response deadline passed, while ignoring multiple efforts from Defendants to engage in discussions and an instruction from the district court during a status conference to respond to Defendants' discovery requests. Those responses, the Court finds, were inadequate. Plaintiff continued to ignore Defendants' efforts to resolve the issues, prompting Defendants to file a motion to compel, which was summarily granted when Plaintiff offered no opposition. After Plaintiff failed to fully comply with the discovery order, Defendants filed their request for sanctions.

Second, the Court finds that Plaintiff's conduct cost Defendants significant time and money, caused the trial to be delayed and therefore prejudiced Defendants. Third, the order granting Defendants' motion to compel explicitly warned Plaintiff that continued failure to comply with her discovery obligations would lead to dismissal. Finally, the Court agrees with the conclusion of the magistrate judge that less drastic measures than dismissal would not cure the harm, because Plaintiff has shown no change in behavior, even after being warned of dismissal. The Court also adopts the district court's conclusion that Plaintiff offered no justification for her pattern of misconduct, noting that "even now on appeal, [Plaintiff] offers no justification for her actions or suggestion of what other lesser sanction could possibly be appropriate[.]"