Rule 37 Discovery Sanctions-The Need for Supreme Court Ordered National Uniformity

Joel Slawotsky"Nearly a quarter century has elapsed since the Supreme Court last addressed in a significant fashion discovery sanctions under Rule 371 of the Federal Rules of Civil Procedure.2 In the ensuing years, the federal district and appellate courts 3 have been without further guidance with respect to policies and procedures for sanction imposition.4 However, notwithstanding the dearth of Supreme Court opinions on discovery sanctions, it is generally * Joel Slawotsky is an attorney with RUBINBAUM LLP in New York.The author is a former law clerk to the Honorable Charles H. Tenney, United States District Judge for the Southern District of New York.1. Subsequent to its initial adoption in 1938, Rule 37 has been amended four times, most recently in 1993.The historical perspective of Rule 37 is provided in detail in the official notes to the Rule and they require no further elaboration.With respect to the 1993 amendments, the sense that discovery abuse had become rampant led to their development.See Craig Enoch, Incivility in the Legal System?Maybe It's the Rules, 47 SMU L. REV.199, 222 (1994).2. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976).While the Supreme Court mentioned Rule 37 in three subsequent opinions, Cunningham v. Hamilton County, Ohio, 119 S. Ct. 1915 (1999), Insurance Corp. of Ireland, Ltd.V. Compagnie des Bauxites de Guinee, 456 U.S. 699 (1982), and Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980), it was in National Hockey, 427 U.S. at 641-43, that the Court articulated the goals of Rule 37 and provided "some guidance" to the district and circuit courts.It should be noted that the Court did uphold the trial court's Rule 37 sanctions each of the last four times the Court reviewed discovery sanctions.See Cunningham, 119 S. Ct. at 1922-23; Insurance Corp. of Ireland, 456 U.S. at 709; Roadway Express, 447 U.S. at 767-68; National Hockey, 427 U.S. at 643.3. While this article deals with sanctions in federal courts, the problem of discovery abuse exists in state courts as well.See

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