For some, discovery is merely a necessary evil in the litigation process.  And so, it should come as no surprise that the discovery process is often ripe with gamesmanship.  A recent decision reminds practitioners, however, that discovery is meant to be cooperative, and gamesmanship – especially repetitive and intentional gamesmanship – may be met with “death penalty sanctions” (Heslin v Jones, (2021 WL 4571198 [Tex Dist, Travis County, Sept. 27, 2021]).


The facts of the underlying litigation are not relevant.  Rather defendants’ flagrant refusal to comply with their discovery obligations is what warrants discussion.  On October 18, 2019, the Court ordered expedited discovery, including written discovery and depositions, to be conducted with respect to a particular cause of action. For two months defendants failed in “numerous respects” to comply with the Court’s order, necessitating motion practice.  On December 20, 2019, the Court held “[d]efendants in contempt for intentionally disobeying [a discovery] order” (“Order”), but reserved “all additional remedies” based on defendants’ representations that they would promptly remediate any discovery deficiencies.  Defendants, however, reneged on their promise.

In response, the Court entered a default judgment on liability as against defendants.  In issuing this severe sanction, Justice Gamble detailed defendants’ history of contumacious and intentional discovery failures and concluded that the imposition of “lesser remedies…would be inadequate in light of the history of the Defendants conduct in this court” given the reality that “judicial admonishments, monetary penalties, and non-dispositive sanctions have all been ineffective at deterring the [discovery] abuse” and “general bad faith approach to litigation” engaged in by defendants.  Therefore, because lesser sanctions had proven ineffective when previously ordered, the Court determined that anything shy of the default judgment on liability “would not adequately serve to correct the Defendants’ persistent discovery abuses” and “unwarranted disregard for the Court’s authority.”


Although this case illustrates egregious discovery misconduct, it serves as an important reminder that discovery gamesmanship and win-at-all-costs tactics will not be tolerated during the discovery process.  And where, as here, the games are indicative of a bad faith approach to litigation, judges can, and will, reach into their arsenal and impose significant sanctions.

Thank you to second year associate, James Maguire in the Firm’s Uniondale office, for his research assistance related to today’s blog.