Defendant has failed to respond to any discovery requests. Plaintiff's subsequent motion to compel was granted + monetary sanctions awarded. Defendant still didn't respond and didn't pay any sanctions.
I wanted to do a Motion For Issues Sanctions & Terminating Sanctions to strike Defendant's Answer to the Complaint (to get a default judgment). However, the Clerk said the earliest that motion could go on calendar was 3 months AFTER the scheduled trial date. I went in ex parte to shorten time on hearing the motion but it was denied.
Trial is approaching in a few days. I want to limit D's testimony. Can I still bring up Issues/Terminating Sanctions as a Motion In Limine, or should it be a Motion In Limine to Exclude testimony/evidence based on D's discovery violation?
Thanks, I'm a newbie
Employment / Labor Attorney
It may be too late to answer since your wrote trial is in a few days when you asked this question four days ago. But, here are some general ideas... Prepare a trial brief for the court (ideally no more than 5 to 10 pages) addressing the facts, theories, and merits of the case plus the plaintiff's violations of the discovery act. Bring your motion for terminating sanctions and ask the court to hear it as a threshold issue on shortened time. I would also come to trial prepared with your motions in limine to preclude admission of any evidence on issues for which discovery was not provided as ordered. If this is a jury trial, I would ask for appropriate jury instructions regarding adverse inferences to be drawn from the plaintiff's refusal to provide discovery. If your motions in limine are granted, object each and every time the plaintiff tries to introduce evidence rules inadmissible by the court as a sanction. The plaintiff should have a difficult time proving his/her case with little or no evidence to offer. At the close of the plaintiff's case in chief, whatever is left of it, move for nonsuit and for a directed verdict.
Follow me on Twitter @joeroselaw. I answer questions on Avvo to try to help get you pointed in the right direction. But, I am not your attorney. Beware, my answers here are general, limited, incomplete, and can never be as complete, thorough, or accurate as one I would give to a client after hearing all of the facts and details of my client's situation and applying the correct law. Also, I am admitted to practice law only in California and all of my answers are intended exclusively for the Golden State.
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