| 词汇 | Discovery Sanctions3 |
| 释义 | `1`Discovery Sanctions3 `2` "Legal Lexicon": It is appropriate to presume that where documents relevant to the merits of the litigation have been concealed the deception casts doubt on the concealing party's case. See, e.g., Phoceene Sous-Marine, S.A., 682 F.2d at 806.. Thus, from deception regarding the documents "one may reasonably infer" that deceiver's "case is lacking in merit." Phoceene Sous-Marine, S.A., 682 F.2d at 806 (citing Hammond Packing Co. v. Arkansas, 212 U.S. 322, 349-54 (1909)). See Jones, 921 F.2d at 879 ("Failure to disclose or produce materials requested in discovery can constitute 'misconduct' within the purview of [Fed. R. Civ. P. 60(b)(3)] . . . .") (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)). Rule 37(b)(2)(C) provides the sanction of dismissal. The 9th circuit has strictly construed the language of Rule 37(d). See, e.g., Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n.4 (9th Cir. 1983) (the rule does not apply to non-parties "because it addresses only a party's failure to appear . . . ."). Attending a deposition but refusing to testify is not a "failure to appear" for the purposes of Rule 37(d). Accordingly, the proper remedy is a court order to testify under Rule 37(a), and not dismissal under Rule 37(b)(2)(C). Four other circuit courts have explicitly adopted this interpretation of Rule 37(d). R.W. Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15 n.2 (1st Cir. 1991) ("'failure to appear' for a deposition is strictly construed and Rule 37(d) sanctions apply only when a deponent literally fails to show up for a deposition session") (quotations and citations omitted); SEC v. Research Automation Corp., 521 F.2d 585, 589 (2nd Cir. 1975) ("Where a defendant does in fact appear physically for the taking of his deposition but refuses to cooperate by being sworn in and by testifying, the proper procedure is first to obtain an order from the court . . . ."); Stevens v. Greyhound Lines, Inc., 710 F.2d 1224, 1228 (7th Cir. 1983) (quoting Research Automation); Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994) ("refusal to answer questions or participate [at a deposition] does not constitute a 'failure to appear'"), cert. denied, 115 S. Ct. 752 (1995). |
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