Dyson v. Olin Corp.

KILGARLIN, Justice,

concurring.

I concur in reversing the judgment of the court of appeals. The only purpose of this concurrence is to address two matters contained in the court of appeals opinion that are not discussed in our opinion — not discussed because they were not brought forward as error. However, I fear that unless mention is made of the appellate court’s writing on those two points, this court’s approval could be inferred by the notation that will hereafter accompany the court of appeals opinion, “reversed on other grounds.” Both matters deal with sanctions for discovery abuse.

First, the court of appeals pronounces that “[t]he selective use of sanctions follows from the basic rule that sanctions are not to be used to punish.” 678 S.W.2d at 655. This view is reflective of an older line of cases, and does not find support among current commentators. Indeed, this same appellate court, as well as other courts, has subsequently affirmed the concept that discovery sanctions should be invoked both to punish and to deter others from abusing the discovery process. See Jarrett v. Warhola (Te x.App.—Houston [14th Dist.] 1985, writ ref’d).

The concept of utilizing sanctions as punishment or deterrence has developed support over the last ten years. In National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 , 96 S.Ct. 2778 , 49 L.Ed.2d 747 (1976), a federal district court had concluded that a plaintiff had not acted in good faith in failing to answer written interrogatories after seventeen months, in spite of numerous extensions and admonitions from the court. Accordingly, the district court dismissed the cause of action. The Circuit Court of Appeals reversed, holding that the dismissal was an abuse of discretion. The United States Supreme Court, in reinstating the trial court’s dismissal, said:

But here, as in other areas of the law, the most severe in the spectrum of sanc *460 tions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.

Id. at 643 , 96 S.Ct. at 2781 . The Court noted that should the circuit court decision remain undisturbed, plaintiffs might faithfully comply with all future discovery orders. However, the Court also observed that other parties to the lawsuit would thereafter feel at liberty to flout other discovery orders of other district courts.

Shortly after National Hockey League , utilizing sanctions as a deterrent or punishment was given credence by a Texas court. In Southern Pacific Transportation Co. v. Evans, 590 S.W.2d 515, 518 (Tex.Div.App.—Houston [1st Dist.] 1979, writ ref’d n.r. e.), cert. den., 449 U.S. 994 , 101 S.Ct. 531 , 66 L.Ed.2d 291 (1980), the court of appeals, in affirming a trial court’s action of striking pleadings and defaulting the defendant, Southern Pacific, said “[ajlthough many cases hold that the primary purpose of sanctions is to insure that discovery is accomplished rather than to punish; [citations omitted], the abuse of the discovery rules has caused a trend in federal and state courts towards using sanctions to deter violations of the rules by other litigants.”

More recently the same court, in City of Houston v. Arney, 680 S.W.2d 867 (Tex.App.—Houston [1st Dist.] 1984, no writ), reaffirmed its position in Southern Pacific Transportation Co. v. Evans. In another case, although conceding that the main purpose of sanctions was to obtain compliance, the punishment aspect of sanctions was recognized. Lindley v. Flores, 672 S.W.2d 612 (Tex.App.—Corpus Christi 1984, no writ).

Commentators have been equally vocal in advocating sanctions for purposes other than obtaining compliance. Justice Spears of this court observed in The Rules of Civil Procedure: 1981 Changes in Pre-Trial Discovery, 12 St. Mary’s L.J. 633, 651 (1981), that “more frequent punishment for failure to comply would ensure better compliance.” This writer stated in Kilgarlin & Jackson, Sanctions for Discovery Abuse Under New Rule 215, 15 St. Mary’s L.J. 767 (1984):

In recent years, a new concept of the office of sanctions has clearly emerged in answer to new challenges facing the Texas judicial system. Through decisions and rule changes, our courts have recognized that discovery sanctions must do more than just obtain compliance of the recalcitrant party. The most important of the newly-embraced purposes is deterrence of future violations. Moreover, courts have held that sanctions are properly used to insure that the abuser does not profit by his wrong, and that his adversary does not suffer by it. The sanction power may now also be used to protect an innocent party from an unreasonable burden and expense caused by misuse of discovery. Finally, prevention of needless delay and consumption of court time has been approved as a legitimate sanction goal.

Id. at 774-75. See also Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harv.L. Rev. 1033 (1978).

Now, this court, but one month ago, has refused the application for writ of error in Jarrett v. Warhola. With that refusal we have adopted as if it were the language of this court that sanctions are to be used “not merely to secure compliance with discovery rules, but further to penalize those who have abused the discovery process.”

Second, and of less import, it should be noted that the court of appeals approved an interpretation of former Rule 168, Tex.R. Civ.P., requiring a party to identify a witness in advance of trial; and, if not named, the witness should not be permitted to testify. 678 S.W.2d at 655. While there was a Rule 168 requirement to identify testify- *461 mg expert witnesses, there was no similar requirement as to lay witnesses. Employers Mutual Liability Insurance Co. of Wisconsin v. Butler, 511 S.W.2d 323, 324-25 (Tex.Civ.App.—Texarkana 1974, writ ref’d n.r.e.), correctly interpreted former Rule 168, saying “[tjhere is a recognized distinction, however, between ‘persons having knowledge of relevant facts’ and ‘witnesses who will be called [to testify] at the trial’.” Mixing of the two terms can only lead to confusion. Discovery of the first is permitted; discovery of the second is not.

The court of appeals likewise does not correctly state the law under current Rules 166b and 215, Tex.R.Civ.P. Although it is true that the Advisory Committee to the Supreme Court in its recommendations leading to the April 1, 1984 rules amendments did advocate advance naming of all potential witnesses, expert or not, the supreme court in promulgating the rules rejected this proposal.

I commend the court of appeals in this case for its subsequent opinion in Warhola and its changed attitude toward the proper office of sanctions. However, it is regrettable that other courts continue to adhere to the theory that the sole purpose of sanctions is to obtain compliance.. This theory results in procrastination and gamesmanship, with the recalcitrant party confident that whatever period of delay has elapsed and however much harm his dilatory tactics may have caused his adversary to suffer, as long as the response to discovery is filed before court action striking pleadings, all is well. It is this sort of attitude that encourages continued disrespect and abuse of the discovery process, that clogs our courts and frustrates the ends of justice. I hope that the imprimatur of this court on War-hola will serve as an encouragement to our judiciary to utilize sanctions to thwart those abuses that all too often occur in the discovery process.

Having given vent to my strong feelings about the use of sanctions, I join in reversing the judgment of the court of appeals.