Saturday, February 18, 2006

Discovery violation ends lengthy litigation between soulless corporations

Aurora Credit Services, Inc. v. Liberty West Development, Inc.

This line from Judge Dever, buried in a footnote in the court of appeals opinion, pretty much sums up the problem in this case: "All discovery in this case will be completed sixty days from today's date. Operative word is completed, gentlemen. This case is almost as old as my children."

Aurora willfully failed to comply with Judge Dever's discovery order, and now appeals the dismissal of its complaint with prejudice.

Aurora first claims that it didn't have to respond to the initial discovery requests because the requests were mailed to the wrong address. But Aurora actually received the requests a week after they were mailed, and "Utah courts have held that actual notice of discovery requests is sufficient to invoke rule 37" (civil procedure rule 37 governs motions to compel discovery and sanctions for violation of a discovery order). So common sense triumphs over cold technicality

Aurora also claimed that it did respond to the discovery order by serving written responses and objections within the time required by the order. But the court of appeals determined that Aurora's response "consisted primarily of objections." Since the objections were served well after the deadline to respond to the initial discover requests, the objections were waived. Aurora thus violated the discovery order by responding only with waived objections rather than information.

The court of appeals also determined that Aurora's violation of the discovery order was willful. So the district court did not abuse its discretion when it dismissed Aurora's complaint with prejudice.


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