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Pro per discovery sanctions a deterrent for discovery abuses?

San Diego, CA |
Filed under: Discovery

Given that a party in pro per cannot be awarded attorney’s fees as a discovery sanction, is the threat of a motion to compel following a meet and confer really any deterrent for discovery abuses by the opposing party? I am plaintiff in an unlimited civil case and in their first production of documents the defendants have produced very little, using circular responses and delaying production of nearly all requested documents. For the most part, this is because they actually don’t have any documents to back up their contentions (which I know for a fact and their non-production confirms), and in part possibly because they think their attorney can play legal games for them, and perhaps underestimate me. It’s yet to be seen how they respond once I start to pressure them to produce certain documents they are withholding. However, procedurally, is the threat of discovery sanctions effective even though those sanctions might not be much because I’m a pro per? On the other hand, they’ll have to pay their attorneys more to try to defend against a motion to compel and/or sanctions, and defendants aren’t that rich, so that in itself may be enough financial pressure. I can’t afford an attorney, but if I find one willing to substitute in and seek the sanctions for me, plus attorney fees, would that be a practical option to deter the discovery abuses?

Attorney Answers 2


You raise several issues.

First, while paying sanctions to address the prevailing party attorney fees is one of the pressures brought by engaging in discovery abuse, it is not the only pressure. The court can sanction a recalcitrant party with the money paid into the court if it believes there is an abuse of the discovery process. Furthermore, if the abuse continues, subsequent motions might result in non-monetary sanctions, like issue sanctions or terminating sanctions. Another big down side to being found to have committed discovery abuse is the reputation the party creates with the judge, who may be assigned to try the case. Parties who obfuscate and delay generally create a bad impression.

Second, your idea of hiring an attorney to handle just the motion to compel is a credible idea. There is a trend toward "unbundling of legal services" meaning piecemeal retention of attorneys for parts of the matter. If you could find an attorney willing to associate into the case for the limited purpose of prosecuting your motion(s) to compel, then you would not only have very competent help and the attorney fees might be assessable as sanctions. Just keep in mind that rarely do judges assess sanctions in the full amount of the attorney fees it takes to completely handle the motion to compel through hearing. You may still have to pay more than you would get back.

Good luck to you.

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If you know they do not have any documents to back up their contentions, then an option is to let it go. Then if they attempt to use the documents in evidence at trial, they can be barred from doing so. Even if they do have the documents and tey don't produce them in response to your specific requests for them, they won't be able to use them.

I like the advice above, perhaps you can hire an attorney to at least discuss your options with. Good luck.

I am licensed in California only and my answers on Avvo assume California law. The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.

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