Court orders compelling discovery production continue to be disregarded and even flouted by some companies. But judges are growing intolerant of such behavior. In a May 3 decision peppered with colorful commentary, Judge Neil Gorsuch, writing for a 10th Circuit panel, firmly responded in Lee v. Max International. The decision affirmed a district court order dismissing the case because the plaintiff repeatedly violated court orders to produce documents.
“Discovery is not supposed to be a shell game, where the hidden ball is moved round and round and only revealed after so many false guesses are made and so much money is squandered,” Judge Gorsuch wrote.
The appeals court noted that the plaintiffs produced the tax records only after the defendant’s attorneys uncovered the falsity of the declaration, forcing them to file yet another motion concerning their production. After noncompliance with the initial discovery request and two orders to comply, the circuit panel held that “three strikes are more than enough to allow the district court to call a litigant out.”
Lee provides valuable guidance on the steps a party must take to ensure compliance with the rules of discovery.