Discovery is a focal point of every civil case. It is the process through which parties gain insight into the other side’s case in chief, their assets, and evidence. When a party fails to respond properly, the other side can ask the court for discovery sanctions. The steps must be followed in a particular order, and a court cannot issue sanctions without following most of the steps below:
Step Zero: The Deficiency Letter
Often attorneys will draft what is called a deficiency letter before they continue down the process of discovery sanctions. Deficiency letters are designed to clearly outline what is deficient in the opposing party’s discovery response, why it is deficient, and what information is needed to make the answer sufficient. Deficiency letters are not required by statute; however, they make a powerful exhibit at hearings when arguing that the opposing party is not properly abiding by Oklahoma’s discovery statute.
Step 1: The Meet and Confer
The real first step in discovery sanctions is a practice often referred to as the meet and confer. The meet and confer is a required telephonic or in-person meeting between the parties to discuss discovery deficiencies. It is intended to provide parties with a chance to reach a resolution on the deficiencies without the involvement of the court. Meet and confers must be conducted either over the phone or in person, however, and cannot be done via email. If a party intentionally avoids a meet and confer, then this requirement can be satisfied with reasonable efforts to meet and confer.
Step 2: The Motion to Compel Discovery
Once a party has satisfied the meet and confer requirement, they are able to file a Motion to Compel Discovery against the other party if discovery remains unanswered. Courts will set this for hearing, and if they sustain the Motion to Compel, they are required to award attorney’s fees to the party who was required to file the Motion. At this hearing, the court will hear argument about the failure to provide discovery responses, the sufficiency of service of discovery, the satisfaction of the meet and confer, and any defense raised by the party responding to the Motion to Compel. The court can then order the other party to answer discovery within a set amount of time or deny the motion. Bear in mind that if a Motion to Compel is denied, the court is required to award attorney’s fees to the prevailing party.
Step 3: The Motion for Discovery Sanctions
At the Motion to Compel hearing, the court may decide to order that discovery responses are required under Oklahoma law and order that the responses be submitted within a certain timeframe. If the responses are not received within that timeframe, the moving party is then allowed to file a Motion for Discovery Sanctions, which allows the court to punish the non-complying party for failing to abide by discovery. Sanctions can include “negative inferences,” which means that the court assumes the worst outcome for a particular answer, or they could prohibit a party from admitting exhibits that were not produced into evidence, or worse. Courts are sometimes allowed to rule that a party has lost their civil case or rule against them as a discovery sanction.
How We Approach Discovery
Discovery is also an area ripe for attorneys to play games with the intent of delaying a final outcome or incurring legal fees for their practice. At Croslin Law, our approach to discovery is to answer questions as they are written, unless a valid objection exists, and within the timeframe allowed by statute. We won’t spend your money playing pointless games with the opposing party.
Respond Right the First Time
It is worth responding to discovery as required under Oklahoma law and ensuring that your answers are sufficient the first time around. As we can see, failure to do so can cost you dearly. If you are involved in a discovery dispute, or fear that the opposing party in your case may not abide by Oklahoma’s discovery code, call Croslin Law today to see what can be done.