Facts

The State Bar initiated disciplinary proceedings against Felix Torres, Jr., filing a Notice of Disciplinary Charges (NDC) on October 4, 2005, followed by a second NDC on December 16, 2005. The two matters were consolidated on February 15, 2006. On March 10, 2006, Torres was properly served with a notice of deposition scheduled for April 3, 2006. Rather than attend, Torres sought a protective order, requesting the deposition take place in Laguna Hills, California, rather than at the State Bar’s Los Angeles office, citing the Americans with Disabilities Act (ADA). He also argued that the time for discovery cut-off had passed. He did not attend the scheduled deposition, leading the State Bar to file a motion to compel his oral testimony.

On April 5, 2006, the hearing judge denied Torres’s request for a protective order and granted the State Bar’s motion to compel discovery, rescheduling the deposition for April 25, 2006. The State Bar sent Torres an e-mail reminder on April 21, 2006. Torres responded via e-mail that he would not attend, again citing his disability. He failed to appear at the scheduled deposition.

As a result, the State Bar filed a motion requesting terminating sanctions on May 4, 2006. Torres filed a reply on May 10, 2006, reiterating his ADA rights and alleging the original deposition notice was defective, rendering the order to compel discovery void. On May 17, 2006, the hearing judge issued an “ORDER RE: SANCTIONS,” imposing sanctions for Torres’s failure to appear at his scheduled depositions. The sanctions barred Torres from entering any documentary or testimonial evidence at trial, except for his own testimony.

Procedural Posture

The State Bar sought interlocutory review, contending the hearing judge abused her discretion by allowing Torres to testify at trial without first submitting to a deposition, thus denying the State Bar the opportunity to impeach his testimony. The State Bar requested that Torres’s answer to the NDC be stricken and a default judgment be entered against him. Torres did not respond to the State Bar’s review petition.

Issue(s)

Did the hearing judge abuse her discretion in issuing discovery sanctions against Torres, and were the imposed sanctions sufficient to protect the State Bar’s right to discovery and ensure a fair disciplinary process?

Holding

Yes, the Review Department held that the hearing judge abused her discretion by imposing an insufficient sanction. The Review Department vacated the sanctions order and remanded the matter for further proceedings.

Reasoning

The Review Department based its reasoning on several key points:

• Scope of Interlocutory Review: The Review Department’s scope of review in an interlocutory matter is limited to deciding whether the hearing judge committed legal error or abused her discretion. This standard involves employing the equivalent of the substantial evidence test, accepting the trial court’s resolution of credibility and conflicting substantial evidence, and its choice of possible reasonable inferences.
• Guiding Principles of Discovery: California courts favor disclosure in discovery, and discovery statutes are intended to “take the game out of the trial” while not adversely affecting the adversarial nature of litigation. The objectives of discovery rules include ascertaining truth, preventing perjury, detecting false claims, making facts available, encouraging settlements, and expediting litigation.
• Civil Discovery Act: The Civil Discovery Act of 1986 (Code Civ. Proc. §§ 2016.010-2036.050) provides guidance, as the State Bar Court has adopted virtually all of the Act. A judge has broad discretion to impose discovery sanctions, subject to reversal only for arbitrary, capricious, or whimsical action. Sanctions should be suitable and necessary to enable the seeking party to obtain the objects of discovery, not designed to punish.
• Failure to Comply and Willfulness: There are two requirements for imposing discovery sanctions: a failure to comply with court-ordered discovery and willfulness. The record showed Torres failed to appear for a properly-noticed deposition and a court-ordered deposition, indicating his non-compliance was willful.
• Insufficient Sanction: While the hearing judge determined sanctions were appropriate, the Review Department concluded the sanction imposed (barring Torres from introducing evidence except his own testimony) was insufficient. It was ineffective to induce discovery, hindered the State Bar’s ability to proceed at trial, and allowed Torres to testify without affording the State Bar the opportunity to impeach his testimony or credibility.
• Appropriateness of Sanctions: Discovery sanctions should be appropriate to the dereliction and should not exceed what is required to protect the interests of the party entitled to discovery. A court’s exercise of discretion should not reward the disobedient party. Here, the limited sanction was deemed an empty penalty that nullified the purpose of the order compelling Torres to appear at the deposition.
• Power to Apply Terminating Sanctions: In instances where lesser sanctions are ineffective, a court may apply terminating sanctions. While such sanctions are drastic and warranted against a litigant who refuses to comply with discovery obligations, they should only be granted when the party has had an opportunity to comply with a court order.

Because Torres refused to comply with the court’s order to appear for deposition and because the imposed sanction was deemed ineffective, the Review Department concluded a more severe sanction was necessary.

Defenses Raised

Torres argued that his non-compliance was justified by his rights under the Americans with Disabilities Act (ADA) and that the original deposition notice was defective. The hearing judge and Review Department rejected these arguments, finding no support for the ADA claim and determining that any technical defects in the notice were not prejudicial.

Disposition & Sanction

The Review Department vacated the hearing judge’s order and remanded the matter to the Hearing Department for further proceedings in accordance with its opinion. The Review Department mandated that the hearing judge impose appropriate sanctions to ensure the State Bar’s right to discovery was protected, which could include more severe sanctions up to and including terminating sanctions.

Practical Implications

• Parties in State Bar disciplinary proceedings (and other legal matters) must comply with discovery orders, and failure to do so can result in significant sanctions.
• Hearing judges have broad discretion in discovery matters, but that discretion is not unlimited and can be reviewed for abuse, particularly if the imposed sanctions are insufficient to achieve the purposes of discovery.
• The Review Department is willing to overturn a hearing judge’s decision if it finds the imposed sanctions fail to protect the rights of the parties involved or frustrate the purpose of the disciplinary process.

Citations & Links

• In the Matter of Torres, (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 19
• Civil Discovery Act (Code Civ. Proc. §§ 2016.010-2036.050)