In Universal Health Group v. Allstate Insurance Company, the Sixth Circuit affirmed as a sanction the ultimate penalty – dismissal of a complaint based on pervasive discovery violations. The Court, in an opinion by Judge Kethledge, recited the litany of discovery violations caused by plaintiff’s counsel, aptly noting that “to recite the facts of this case is nearly to decide it.” Although the plaintiff filed suit seeking recovery of certain payments allegedly due by the defendant, the plaintiff never responded to discovery requests and instead sought multiple extensions granted by the court and ultimately ignored court orders and deadlines. After being sanctioned as a result of non-compliance with written discovery, the plaintiff then refused to produce witnesses at their scheduled depositions.
The Sixth Circuit noted that four factors are considered when evaluating the district court’s dismissal as a discovery sanction: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the party’s conduct; (3) whether the dismissed party was warned that the failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. The Court found that all of those factors were present here notwithstanding the plaintiff’s argument that it was not specifically warned of the potential for dismissal. The Sixth Circuit noted that there “is no magic-words prerequisite to dismissal under Rule 37(b),” and that the plaintiff was adequately on notice based on prior orders by the district court.
As we recently noted here , more sanctions cases appear to be coming down from the Sixth Circuit. It will be interesting to continue to monitor this and see if this is a trend or simply an aberration.