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Demelash v. Ross Stores3/26/2001
on. Even after the trial court entered an order compelling production, Ross Stores refused to produce answers to request #11, and its computer summary was not responsive. Ross Stores supported its request to produce discovery via computer records by representing that the substantial equivalent of the information requested could be produced in that form, but its actual production violated the court's order and failed the letter and spirit of full disclosure required by CR 37.
The trial court's later order that Ross Stores need not produce additional computer records does not excuse Ross Stores' conduct. At the time of Ross Stores' violation, an order to compel was in effect. Moreover, Ross Stores' claim that it had fully complied with the express language of the court's written order ignored its prior oral representations on which the order was based.
Ross Stores also violated CR 26. CR 26(g) provides that when responding to a discovery request, an attorney must certify by signature on the answers to discovery that, after making 'reasonable inquiry,' the responses are: (1) consistent with the rules, (2) not interposed for any improper purpose, and (3) not unreasonable or unduly burdensome or expensive. 'Reasonable inquiry' is judged by an objective standard. CR 26(g) parallels CR 11. Its purpose is to deter discovery abuses, which include delaying tactics, procedural harassment and mounting legal costs.
Here, Ross Stores' intransigence regarding discovery did not constitute justified resistance, but rather served to delay, harass and increase the costs of litigation. Moreover, its declaration that requested documents were destroyed in 'a disastrous flood' occurring 'within the last year or two' indicates failure to make reasonable inquiry before providing responses to request #10 and interrogatory #22. The declaration was filed 14 months after Demelash first requested the information, and failed to state the date the flood occurred, whether some records survived, or why the most recent records could not be produced.
On remand, the trial court should fashion an appropriate discovery order that requires Ross Stores to produce the information Demelash requested (i.e., a computer generated report should produce the substantial equivalent of the information Demelash requested or if that is not possible, then the files should be produced, limited if necessary and in the discretion of the trial court, to the scope necessary and appropriate to Demelash's claims). It should also determine the particulars of the timing and effect of the flood vis- -vis the requested documents. After reviewing such information, the trial court should consider an appropriate sanction for violation of discovery orders.
REVERSED IN PART/AFFIRMED IN PART.
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