A grossly negligent failure to obey an order compelling discovery may justify the severest disciplinary measures available under Fed. R. Civ. P. 37. This rule provides a spectrum of sanctions. The mildest is an order to reimburse the opposing party for expenses caused by the failure to cooperate. More stringent are orders striking out portions of the pleadings, prohibiting the introduction of evidence on particular points and deeming disputed issues determined adversely to the position of the disobedient party. Harshest of all are orders of dismissal and default judgment.
Plaintiff movie theatre sued defendants, local theatres and film distributors, claiming damages for antitrust violations and seeking an injunction against alleged anticompetitive practices. Plaintiff's delays and highly uncooperative behavior during discovery, both with defendants' counsel and a federal magistrate, resulted in the magistrate recommending sanctions under Fed. R. Civ. P. 37 precluding plaintiff from introducing evidence of damages, in essence dismissing plaintiff's claim for damages. The court reversed the trial court because the undeniable fault of plaintiff justified the sanctions order recommended by the magistrate.
Does grossly negligent failure to obey an order compelling discovery justify the severe disciplinary measures under Fed.R.Civ.P. 37?
Plaintiff urges that because it has at last filed answers to the damage interrogatories, it should be permitted to prove its losses at trial. But it forgets that sanctions must be weighed in light of the full record in the case, Hockey, supra, 427 U.S. at 642, 96 S. Ct. 2778. Furthermore, "(i)f parties are allowed to flout their obligations, choosing to wait to make a response until a trial court has lost patience with them, the effect will be to embroil trial judges in day-to-day supervision of discovery, a result directly contrary to the overall scheme of the federal discovery rules,". Moreover, as we have indicated, compulsion of performance in the particular case at hand is not the sole function of Rule 37 sanctions.
In light of the fact that plaintiff, through its undeniable fault, has frozen this litigation in the discovery phase for nearly four years, we see no reason to burden the court below with extensive proceedings on remand.