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Samples v. Mitchell12/19/1997
o answer interrogatories prior to trial, despite court order compelling answers; "None of the six cases on this issue decided to date by our Supreme Court have presented evidence of willfulness equivalent to that of the instant case.").
Samples' attorney served standard interrogatories, not a complex series of questions making compliance difficult. At a minimum, the existence of the tape should have been disclosed in the original answers to Samples' interrogatories, as the tape obviously related to Samples' personal injury claim. Instead, Mitchell's lawyer knew about the video tape when the interrogatories were received, yet willfully failed to reveal it to Samples or the court for some two and a half years. At the least, Mitchell's lawyer should have known the video was relevant when Moser was added as a witness and should have disclosed the video's existence to Samples' attorney prior to Moser's deposition.
The entire thrust of the discovery rules involves full and fair disclosure, "to prevent a trial from becoming a guessing game or one of surprise for either party." State Highway Dep't v. Booker, 260 S.C. 245, 252, 195 S.E.2d 615, 619 (1973)(quoting Hodge v. Myers, 255 S.C. 542, 545, 180 S.E.2d 203, 205 (1971)). Essentially, the rights of discovery provided by the rules give the trial lawyer the means to prepare for trial, and when these rights are not accorded, prejudice must be presumed. Downey v Dixon, 294 SC 42, 46, 362 S.E.2d 317, 319 (Ct.App."987). Unless the party who has failed to submit to discovery can show lack of prejudice, reversal is required. Id. at 46, 362 S.E.2d at 319.
Even though the imposition of sanctions is usually left to the sound discretion of the trial judge, whatever sanction the judge imposes "should serve to protect the rights of discovery provided by the Rules." Downey v. Dixon, 294 S.C. 42, 362 S.E.2d 317 (Ct.App. 1987). Overly lenient sanctions are to be avoided where they result in inadequate protection of discovery. Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1126 (5th Cir. 1970), cert. denied sub nom., Trefina v. U.S., 91 S.Ct. 118 (1970).
As Chief Judge Sanders eloquently stated in Downey:
"The rights of discovery provided by the Rules were not protected in any way. Neither was Ms. Downey accorded the rights of discovery provided by the Rules, nor was the sanction imposed against Mr. Dixon a meaningful deterrent to those who might fail to submit to discovery in the future. (It is perfectly obvious that few, if any, litigants would willingly submit to the discovery provided by the Rules if the alternative were simply paying $50.). Indeed, it can be argued that the sanction imposed in the instant case tended to encourage, rather than discourage, noncompliance with the Rules." Id. at 45-46, 46 n.2, 362 S.E.2d at 318, 318 n.2.
The same is true in this case. Few litigants would reveal the existence of video surveillance evidence if the alternative were simply having the testimony of the investigator who filmed the video limited at trial.
In summary, in failing to exercise discretion, the trial judge abused that discretion. Furthermore, the sanction he imposed was not meaningful enough to protect the rights of discovery provided by the Rules.
Samples also appeals the trial court's refusal to grant a new trial based on the inflammatory closing argument of Mitchell. We need not reach this issue.
REVERSED AND REMANDED.
CURETON and GOOLSBY, JJ., concur.
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