Answer May Be Struck Where Defendant Willfully Fails to Produce Documents

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Roberts v. City of Phoenix, 585 Ariz. Adv. Rep. 33 (App. Div. I, July 1, 2010) (J. Brown)

WHERE DEFENDANT REPEATEDLY FAILED TO PRODUCE DOCUMENTS COMPELLED BY COURT AND THERE WAS EVIDENCE THIS WAS DONE IN BAD FAITH AND TO OBSTRUCT DISCOVERY STRIKING ANSWER WAS APPROPRIATE

Plaintiff claimed he was harassed and abused by a City of Phoenix Police officer as the plaintiff left a gay bar. He sought discovery of the officers in question employment and disciplinary files. The city repeatedly refused these requests, submitted partial records in camera to the court while claiming falsely the records were complete. Even after the trial court expressly found the nondisclosures to be misconduct, the defendant and its lawyers continued to selectively produce and hide documents.The Court of Appeals upheld the trial court's order striking the defendant's answer acknowledging that before the extreme sanction of default can be allowed there must be a showing the party punished itself was responsible for the misconduct. Here the trial court held a hearing and expressly found the City and the City Attorney had willfully withheld documents the court had specifically ordered be produced. The trial court also considered lesser sanctions but properly concluded that striking the answer was the appropriate sanction here. Further the Court of Appeals upheld the trial court's award of attorneys' fees to the plaintiff ruling that whether under section 1988 or Rule 37 the court's decision to award such fees and the method of calculating them are within the sound discretion of the court and the lodestar approach may properly be applied.Finally, on a default hearing the court is not required to award all damages sought by the plaintiff even if they are presented uncontested. It is still within the sound discretion of the trial court to award that amount in a default judgment it feels is just in the circumstances.

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