THE STATE OF NEW HAMPSHIRE SUPREME COURT

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , Michael S. Gill & a. v. Devine, Millimet & Branch, P.A. & a., the court on November 20, 2014, issued the following order: Having considered the briefs and record submitted on appeal, we conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). The plaintiffs, Michael Gill and The Mortgage Specialists, Inc., appeal an order of the superior court dismissing their action against multiple defendants as a sanction for violating a number of orders regarding discovery. We affirm. The plaintiffs contend that the trial court erred by: (1) dismissing the action when [t]here was substantial compliance with providing answers to interrogatories and production of documents (capitalization omitted); (2) failing to apply American Express Travel v. Moskoff, 144 N.H. 190 (1999); and (3) failing to have fashioned a remedy short of dismissal (capitalization omitted). In their brief, the plaintiffs assert that there is no need to differentiate among defendants. I. Facts The record establishes the following facts: The plaintiffs initiated their action in May The defendants served interrogatories upon the plaintiffs beginning in December Although, upon their request, the plaintiffs were given an extended period, until February 2013, in which to answer, they provided no answers, and, in March, defendant Devine, Millimet & Branch, P.A. (Devine) moved for conditional default, which was granted. The plaintiffs then provided some partial answers, while declining to answer, in part, upon attorney-client privilege. Devine represented to the trial court that the plaintiffs did not produce any documents as requested. At some point, the plaintiffs invited the defendants to search through twenty boxes containing approximately 16,000 pages of documents. Devine contends that the boxes contained primarily documents that it had returned to the plaintiffs when it ceased representing them. Thereafter, the trial court struck the conditional default. It then denied Devine s motion for default judgment, but granted its motion to compel answers, observing that some specific information in terms of lawyers who represented the plaintiffs in matters and their respective bills for that work [had not been] disclosed. It ordered the plaintiffs either to supplement their interrogatory responses or to produce a privilege log so that the defendants can focus in on

2 whether or not the claimed privilege is legitimate. It noted that this case is complex and the sooner discovery is completed the quicker this matter can be set for jury trial. The trial court subsequently clarified its order, requiring the plaintiffs by August 1 to provide supplemental responses to virtually all of the forty interrogatories that were submitted to [them] back in December of It explained that the plaintiffs could not satisfy their discovery obligations by allowing the defendants to sort through twenty boxes of documents. It stated that [s]ince it is [the plaintiffs] that ha[ve] made these various claims, [they] should be the one[s] to review the mountain of documents that exist and notify the defendants as to which of those documents [they are] relying upon. It directed the plaintiffs to cull from their documents those specific documents that [they] intend[ ] to rely upon in proving [their] case. The court again required them to produce a log for any items that they claimed were privileged. In response to the plaintiffs motion to clarify or reconsider, the trial court reiterated that the plaintiffs were required to identify only those documents that [they] planned to use at trial. In August, after the trial court s deadline, the plaintiffs provided the defendants compact discs (the first set of CDs), which the defendants represent contained 25,000 pages of electronic files in various formats... that were not Bates numbered, were not separated by document, and were not organized in any discernible fashion. Some of the documents were missing pages... [and] related to all of the various allegations asserted in the Writ against all of the defendants. One defendant represented to the trial court that one disc, containing 1,939 pages, included approximately 450 pages with unintelligible characters and gibberish. Although the plaintiffs continued to refuse to answer some interrogatories on the basis of privilege, they did not provide a privilege log. A second conditional default was granted and later struck. Devine then moved to dismiss the case. In response, the plaintiffs stated, for the first time, that they asserted no attorney-client privilege and, therefore, never intended to provide a privilege log. Despite the plaintiffs failure to meet the August 1 discovery deadline, on September 18, the trial court denied the defendants motions to dismiss and allowed the plaintiffs until October 1 to full[y] respond to all discovery requests. However, it notified them that if October 1st comes and goes and the requested information has not been produced, the Court will have to revisit the motions to dismiss. On October 1, the plaintiffs supplemented their responses to some of the interrogatories, and they gave the defendants additional CDs (the second set of CDs). The defendants represented to the trial court that the documents on these CDs were organized into files that did not correspond to the issues in the case and that the files contained thousands of documents, many of which were 2

3 completely irrelevant to the litigation. Many of the plaintiffs answers referred to hundreds of pages on a CD without further explanation; other answers stated that the question could not be answered absent additional discovery. Thereafter, Devine renewed its motions to dismiss. Following a hearing, by order dated November 6, the trial court found that the plaintiffs admitted that they had not in fact fully answered all of the interrogatories submitted or produced all of the documents requested. It observed that although Gill seems sincere in his representation that he wants to provide all defendants with complete documents and potential witnesses[ ] names, his good intentions are not enough to enable him to continue on with this case. He must follow all of the rules of litigation. It found that [t]he facts in this case are particularly egregious with regard to the plaintiffs failure to provide discovery. The court observed: The problem for the plaintiffs is that New Hampshire law does not allow them to make extensive allegations which are all fact based without providing evidence of those facts when asked to do so through the discovery mechanisms.... It is not up to the defendants to scurry around trying to locate people and papers that would in essence prove or disprove the plaintiffs claims. A party bringing a lawsuit cannot make numerous broad allegations against another party and then simply sit back and wait for the named defendants to in effect prepare the plaintiff s case for him by discovering relevant parties and documents. It further observed that [w]hat has been particularly frustrating to the... defendants is that from some of the materials received [from the plaintiffs,] it is clear that there are other witnesses that have relevant information... that the plaintiff has not disclosed. The trial court found that for more than nine months the plaintiffs had been promising that they were in the process of continuing to make a good faith effort to get the requested information to the... defendants as soon as possible and that the plaintiffs had made no suggestion... that that information will be obtained anytime soon. The trial court found a violation of our discovery rules and a non-compliance with three past court orders. After considering lesser sanctions, such as an award of attorneys fees, it dismissed the action. II. Analysis On appeal, the plaintiffs argue that dismissing their action was error. They contend that 3

4 [t]here was substantial compliance with providing answers to interrogatories and production of documents, documents sought to be disclosed were within the possession of the defendants, the defendants had not yet responded to cross-requests for interrogatories[,] and production of over 25,000 pages of documents and narratives of the theory of the case were provided. (Capitalization omitted.) The decision to sanction a party is a matter left largely to the discretion of the trial court. Lillie-Putz Trust v. Downeast Energy Corp., 160 N.H. 716, 723 (2010). It is within the sound discretion of the trial court to dismiss a case for failure to comply with the court s discovery order. Estate of Sicotte v. Lubin & Meyer, 157 N.H. 670, 673 (2008); see Super. Ct. Civ. R. 21(d) (authorizing superior court to impose sanctions for discovery abuse, including dismissal). Sanctions are appropriate, in part, to deter parties from disregarding discovery requests and to compensate others for costs associated with a party s failure to act in accordance with such requests. Daigle v. City of Portsmouth, 131 N.H. 319, 326 (1988). When a motion to dismiss is based upon the plaintiffs failure to provide discovery, we review the trial court s decision for an unsustainable exercise of discretion. Yager v. Clauson, 166 N.H. (decided August 13, 2014); Sicotte, 157 N.H. at 673. When we determine whether a ruling made by a judge is a proper exercise of judicial discretion, we are really deciding whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. State v. Lambert, 147 N.H. 295, 296 (2001). To show an unsustainable exercise of discretion, the plaintiffs must demonstrate that the trial court s ruling was clearly untenable or unreasonable to the prejudice of their case. Lillie-Putz, 160 N.H. at As the trial court correctly stated, [d]ismissal is and should be a last resort remedy only. However, sometimes that remedy is necessary to invoke. See In the Matter of Jones & Jones, 146 N.H. 119, (2001) (upholding default judgment when defendant repeatedly failed to comply with trial court orders and discovery deadline extension granted by trial court). The record establishes that the trial court gave the plaintiffs many opportunities to provide the discovery sought. The trial court issued three separate orders repeatedly requiring the plaintiffs to provide the information sought by the defendants. Twice the trial court granted conditional defaults and then struck them to allow the plaintiffs more time to respond. The trial court found that the plaintiffs never produced all the requested information, and the record supports that determination. 4

5 For instance, Gill was asked to identify all of the attorneys he employed from 2006 to the present, provide their billing rates, and attach their billing statements. He initially objected, in part, on the grounds of attorney-client privilege and provided only a partial answer. In April 2013, the trial court found that the plaintiffs failed to disclose requested information, ruled against their privilege claims, and ordered them to answer the questions fully and to provide a privilege log if they continued to decline to answer on that basis. It subsequently ordered the plaintiffs to respond by August 1. The plaintiffs failed to meet this deadline. Instead, Gill filed a supplemental response on August 8, referring generally to the first set of CDs. On September 13, Gill gave a second supplemental response stating, I do not have all of the requested information at this time. I am in the process of gathering this information and will provide it upon receipt in a timely manner prior to trial. (Bolding omitted.) In response to the defendants motion to dismiss, the trial court gave the plaintiffs another opportunity to answer the interrogatories, noting that they were under a continuing obligation to provide the requested information and documents in an orderly fashion such that the requesting defendants will have no difficulty in understanding what role this information plays in the plaintiff s case in chief. The trial court also referred to a forty-four page... Gill manifesto that the defendants asserted was disseminated to the general public and identified certain attorneys and tax consultants that do not appear on [the plaintiffs ] answer to the defendants questions regarding [the] identi[t]y of all such persons. The trial court allowed the plaintiffs until October 1 to provide the requested information. However, Gill s October 1 response merely referred the defendants to 1,427 pages on the second set of CDs, which Devine represented consisted largely of the defendants own billing records. Gill was also asked to provide details about every settlement offer that he made in his previously settled divorce action. He initially objected, in part on the basis of a gag order issued in the divorce, and provided only a partial answer. The trial court rejected the gag order as a basis for declining to produce the information, but ruled that the information produced would be subject to a protective order. Gill s August 8 response did not answer the question, addressing instead issues relating to visitation with his daughter. On October 1, Gill further responded by stating: Mr. Gill believes this question can only be answered using information gathered through answered interrogatories and depositions of witnesses, which is not currently available to him.... Once this information has been gathered, Mr. Gill will further supplement this answer. (Bolding omitted.) However, Devine represented to the trial court that the divorce had been settled more than a year earlier and the information regarding settlement offers was in Gill s possession. 5

6 Gill also failed to answer adequately an interrogatory regarding the fees that he alleged he paid to Devine and another defendant in connection with two tax issues. The interrogatory asked him to identify the portion of the fees paid to each defendant for services related to each issue. The answer should have included four numbers: the amount paid to each defendant in connection with each issue. Gill initially objected, in part on the grounds of attorney-client privilege and stated that [t]he invoices are being reviewed, and this response will be supplemented. His supplemental response referred the defendants generally to the first set of CDs and reserved the right to supplement this answer in a timely manner prior to trial. His final response referred the defendants to 1,427 pages on the second set of CDs as well Disc Index for attached documents pertaining to this request. (Bolding omitted.) He never identified the portion of the alleged fee paid to each defendant. In his final response to numerous interrogatories, Gill stated that he reserved the right to supplement his answer before trial. On others he stated that he was continuing to review documents. We agree with the trial court that at some point the line must be drawn and dismissal must be considered. The plaintiffs assert that: (1) they have provided complete and voluminous response[s] to interrogatories ; (2) the question[s]... are virtually impossible to answer ; (3) [i]t would require months and not weeks to find all that information ; (4) the Plaintiffs made clear that they had [a] main computer crash in 2009 and lost all computer records prior to 2008 ; (5) [t]he seventy (70) twenty five [sic] boxes of records had been repeatedly offered for review by the defendants[ ] but they opted never to try to review the documents ; (6) the Court had not even set the deadline for disclosure of expert reports ; (7) the plaintiff[s] tried to depose the key defendant[s] in July in order to provide the answers to submit to their expert witnesses for them to fashion their reports yet the Court quashed all the notice[s] of depositions ; (8) [t]he bottom line is that the defendants want proof of conversations of conspiracy but of course no such documents exist ; and (9) although they haven t been able to answer each and every question as fully as the Defendants would like, they are making a goodfaith effort to answer each and every interrogatory. To the extent that these are factual assertions that the trial court did not credit, the record does not compel such findings. To the extent that these assertions reflect the trial court s findings, they do not establish that it unsustainably exercised its discretion in dismissing the action. The plaintiffs liken this case to American Express Travel v. Moskoff, 144 N.H. 190 (1999), in which the trial court refused to vacate a conditional default on the grounds that the defendant s responses to interrogatories were woefully inadequate. Id. at 191. In that case, the defendant had a single opportunity to answer the interrogatories and had not been ordered to supplement his answers. Id. By contrast, in this case, the plaintiffs have had multiple opportunities to 6

7 answer the interrogatories and have violated multiple court orders by failing to do so. See Sicotte, 157 N.H. at 676 (holding dismissal appropriate sanction for failure to comply with discovery order). The trial court here vacated two conditional defaults and extended the deadline to answer the interrogatories repeatedly. Under the circumstances of this case, the trial court was well within its discretion in determining that the plaintiffs had not complied with their discovery obligations. See Sicotte, 157 N.H. at Finally, we address whether the trial court erred by not imposing a less onerous sanction than dismissal. Although the plaintiffs describe a number of possible lesser sanctions, they have not shown that they suggested any of these options to the trial court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). Moreover, the trial court noted that dismissal of litigation is in fact the most severe sanction that it could impose in any case, that it had considered awarding the defendants attorney s fees as a lesser sanction, but that it had concluded that based upon the plaintiffs[ ] overall conduct such a sanction would be insufficient. Upon this record, we cannot say that the trial court s decision to dismiss the action was clearly unreasonable or untenable. See Lillie- Putz, 160 N.H. at Affirmed. Dalianis, C.J., and Conboy, J., concurred; Arnold, J., retired Superior Court justice, specially assigned under RSA 490:3, II, concurred. Eileen Fox, Clerk 7