holding that “sanctions Subsequently, in Bowie Memorial Hospital v. Wright, we cannot be used to adjudicate the merits of a party's claims or held that the trial court did not abuse its discretion in defenses unless a party's hindrance of the ... process justifies concluding that an expert report failed to comply with the a presumption that its claims or defenses lack merit.”
How later courts described this case
- holding that “sanctions Subsequently, in Bowie Memorial Hospital v. Wright, we cannot be used to adjudicate the merits of a party's claims or held that the trial court did not abuse its discretion in defenses unless a party's hindrance of the ... process justifies concluding that an expert report failed to comply with the a presumption that its claims or defenses lack merit.”
- stating that party may not offer testimony of witness, other than named party, who was not timely identified, unless court finds "there was good cause for the failure to timely make, amend, or supplement the discovery response" or "the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties"
- explaining that discretionary sanctions imposed by trial court to punish discovery abuse must be just; the sanction imposed must be directed against the abuse and toward remedying the prejudice caused to the innocent party, and the sanction must be no more severe than to satisfy its legitimate purposes
- holding that whether an imposition of sanctions is “just” is measured by whether a direct relationship exists between the offensive conduct and the sanction imposed and whether it is excessive, that is, whether it more severe than necessary to satisfy its legitimate purposes
Written by the judges who cited it.
The opinion
GONZALEZ, Justice
concurring.
I concur with the court’s opinion and judgment. The sanction in this case was clearly out of proportion to the offense committed by relator and the opinion appropriately disposes of the present controversy. However, neither our rules nor the court have set guidelines for imposing sanctions. They envision a large degree of discretion vested in the trial court and innovation should not be discouraged in attempting to fashion an appropriate sanction. However, trial judges should not be trigger happy. They should first issue orders compelling discovery. In all but the most egregious circumstances, other lesser sanctions should be tried first before imposing the ultimate sanction of the “death penalty” (dismissal of pleadings). Cases should be won or lost on their merits, not on discovery or sanctions gamesmanship. Thus I write separately to offer additional guidance to the bench and bar.
In assessing sanctions under Rule 215 of the Texas Rules of Civil Procedure, the punishment must fit the crime. Furthermore, a sanction should be a function of both the facts presented and the purpose of the rule the court is enforcing. G. Joseph, Sanctions: The Federal Law op Litigation Abuse § 16 (1989). If this is not clear from the record, the trial court is more apt to be second guessed by the appellate courts.
The Litigation Section of the American Bar Association promulgated the following standards and guidelines to be considered when determining whether to assess sanctions under Federal Rule 11:
a. the good faith or bad faith of the offender;
b. the degree of willfulness, vindictiveness, negligence, or frivolousness involved in the offense;
c. the knowledge, experience, and expertise of the offender;
d. any prior history of sanctionable conduct on the part of the offender;
e. the reasonableness and necessity of the out-of-pocket expenses incurred by the offended person as a result of the misconduct;
f. the nature and extent of prejudice, apart from out-of-pocket expenses, suffered by the offended person as a result of the misconduct;
g. the relative culpability of client and counsel, and the impact on their privileged relationship of an inquiry into that area;
h. the risk of chilling the specific type of litigation involved;
i. the impact of the sanction on the offender, including the offender’s ability to pay a monetary sanction;
j. the impact of the sanction on the offended party, including the offended person’s need for compensation;
*921 k. the relative magnitude of sanction necessary to achieve the goal or goals of the sanction;
l. burdens on the court system attributable to the misconduct, including consumption of judicial time and incur-rence of juror fees and other court costs;
m. the degree to which the offended person attempted to mitigate any prejudice suffered by him or her;
n. the degree to which the offended person’s own behavior caused the expenses for which recovery is sought... , 1
American Bar Association, Standards and Guidelines for Practice Under Rule 11 of the Federal Rules of Civil Procedure, reprinted in 121 F.R.D. 101 (1988).
I recognize that Federal Rule 11 is not comparable to Rule 215 of Texas Rules of Civil Procedure and that Federal Rule 11 does not specify the types of sanctions that may be imposed. However, we do not have to re-invent the wheel. In my opinion, the ABA guidelines developed for determining when to assess sanctions under Federal Rule 11 are instructive whenever sanctions are imposed or denied under Texas Rule 215.
As the court notes, the range of sanctions available to a trial court under Rule 215 is quite broad. Some of these sanctions include:
(1) A reprimand of the offender; 2
(2) Mandatory continuing legal education;
(3) A fine; 3
(4) An award of reasonable expenses, including reasonable attorney’s fees, incurred as a result of the misconduct;
(5) Reference of the matter to the appropriate attorney disciplinary or grievance authority; 4
(6) An order precluding the introduction of certain evidence;
(7) An order precluding the litigation of certain issues;
(8) An order precluding the litigation of certain claims or defenses;
(9) Dismissal of the action or entry of a *922 default judgment. 5
ABA Standards and Guidelines, 121 F.R.D. at 124.
Sanctions are tools to be used by a court to right a wrong committed by a litigant. Any given sanction should be designed to accomplish that end. Sanctions can be compensatory, punitive or deterrent in nature. See G. Joseph, Sanctions: The Federal Law of Litigation Abuse § 16 (1989). The court should assess the type of sanction most likely to prevent a recurrence of the offending conduct. The court should also consider the relative culpability of the counsel and client when selecting the appropriate sanction. See, e.g., Westmoreland v. CBS, Inc., 770 F.2d 1168, 1178-79 (D.C.Cir.1985).
The foregoing guidelines are simply suggestions to guide a trial court in its struggle to make the punishment fit the crime.
. The omitted guidelines are specifically tailored to address the concerns of Federal Rule of Civil Procedure 11 and therefore are not appropriate for inclusion in this general discussion of sanctions.
. Although this is typically the least serious sanction available, some courts have attempted to use the reprimand as a method of embarrassing the lawyer who has committed the offense. For example the court could require the reprimanded lawyer to provide a certified copy of the reprimand order to the members of his law firm. See Huettig & Schromm, Inc. v. Landscape Contractors Council, 582 F.Supp. 1519, 1522-23 (N.D.Cal.1984), aff’d, 790 F.2d 1421 (9th Cir.1986).
. If a monetary fee is imposed, other factors should be considered by the trial court, including:
(1) The time and labor involved;
(2) The novelty and difficulty of the questions involved;
(3) The skill requisite to perform the legal service properly;
(4) The customary fee;
(5) Whether the fee is fixed or contingent;
(6) Time limitations imposed by the client or the circumstances;
(7) The amount involved and the results obtained;
(8) The experience, reputation and ability of the attorneys; and
(9) Awards in similar cases;
ABA Standards and Guidelines, 121 F.R.D. at 125-26.
The authority of a trial judge to assess a monetary fine as a sanction for abuse of the discovery process was disputed in Owens-Corning Fiberglas Corp. v. Caldwell, 807 S.W.2d 413, 415 (Tex.App. — Houston [1st Dist.] 1991, orig. proceeding). The court of appeals held that the trial court had no such authority under rule 215(3). However, in Braden v. Downey, 811 S.W.2d 922 (Tex. 1991, orig. proceeding), we held that the trial judge did have such authority. A few days ago, the United States Supreme Court held that federal courts had inherent power to impose monetary sanctions on a litigant for bad-faith conduct. Chambers v. Nasco, Inc., — U.S. -, 111 S.Ct. 2123 , 115 L.Ed.2d 27 (1991).
.Sanctionable conduct may not necessarily be an ethical violation, however. See Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538-39 (9th Cir.1986).
. These remedies are essentially equivalent in degree depending on whether the plaintiff or the defendant is the offending party.