Court of Appeals Holds that Trial Court Abused Its Discretion in Sanctioning Party for Non-Compliance with Discovery Order

On August 8, 2013, the District of Columbia Court of Appeals decided Roe v. Doe, No. 12-CV-970, slip op. (D.C. Aug. 8, 2013), in which it held that the trial court abused its discretion by sanctioning the appellant-defendant for non-compliance with a discovery order. Id. at 1-2.

By way of background, the appellee-plaintiff brought an action against the appellant-defendant for negligent infliction of herpes. Id. at 1-3. In the course of discovery, “appellee served appellant with a request for an independent medical examination to establish whether he had herpes.” Id. at 3. The appellant failed to respond and so the appellee moved to compel. Id. A motions judge subsequently “directed appellant to ‘file with the court under seal, a certified copy of an STD test.'” Id. Over one month after the deadline for filing the test passed, appellant filed test results for chlamydia and gonorrhea but not herpes. Id. at 3-4. The appellee moved for sanctions. Id. at 4. The trial judge then “ordered appellant to file the results of a test for herpes . . . and to show cause for his failure to comply with the [prior discovery] order.” Id. at 4. Appellant subsequently filed the required test results, which were positive for herpes, and “explained to the trial judge that when he obtained his first STD test, he believed that he was complying with [the court’s discovery] order, as it only stated that he needed to take an ‘STD test.'” Id. The trial judge rejected the appellant’s claimed excuse and sanctioned appellant by prohibiting him “from contesting at trial that he had herpes during the time of his sexual relationship with appellee.” Id. at 5. At trial, “[t]he jury returned a verdict in favor of appellee on the sole count of negligent infliction of herpes.” Id. at 6.

The main issue on appeal was whether the trial court abused its discretion in sanctioning appellant as it did. Id. at 6. The Court of Appeals stated that “[w]e disturb a discovery sanction on appeal only if the trial judge has abused his or her discretion by imposing ‘a penalty too strict or unnecessary under the circumstances.'” Id. at 8 (quoting Nolan v. Nolan, 568 A.2d 479, 487 (D.C. 1990)). “[A] trial court may impose an ‘extreme’ sanction ‘only upon a showing of severe circumstances.'” Id. at 8 (quoting Smith v. Fairfax Village Condo. VIII Bd. of Directors, 775 A.2d 1085, 1091 (D.C. 2001)). “In determining what constitutes severe circumstances which would warrant such an extreme sanction, [the Court of Appeals] ‘must determine whether the non-compliance resulted from willfulness and whether it prejudiced the other side.'” Id. (quoting Inter-Trade, Inc. v. CNPQ, 761 A.2d 834, 838 (D.C. 2000)).

Applying these standards, the Court of Appeals held that the trial court abused its discretion. Id. at 8-13. It concluded that “the sanction imposed here is an ‘extreme’ sanction because [inter alia] it established, as a fact, an issue that is material and disputed, thus significantly prejudicing appellant’s ability to defend himself.” Id. at 8. It further concluded that an “extreme” sanction was not justified because, “even if we assume that appellant’s failure to obtain the appropriate STD test in a timely fashion was done willfully, there is nothing in the record from which we can conclude that appellee suffered any prejudice from appellant’s failure and appellee herself does not identify any prejudice.” Id. at 10. The Court of Appeals concluded that, “[a]t most, all that appellant would have been entitled to as a remedy, beyond perhaps compensation for having to file the discovery motion with the trial court, was a sanction that appellee could not contest that he had herpes on the date when the original test was ordered.” Id. at 12. Concluding that the trial court’s error was not harmless, the Court of Appeals vacated the judgment and remanded the case for a new trial. Id. at 13.