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Zuckerman v. Vane12/19/2002
ed only a handful of fact witnesses and treating physicians he intended to call did not raise the prospect Rule 33 (d) guards against of a party "dumping large volumes of unindexed documents" on the other side. Saleh, 95 F. Supp. 2d at 561. Zuckerman therefore was not entirely unjustified in believing that Vane would be able to identify, examine, and copy the documents relevant to his requests with minimal difficulty, something Vane declined to attempt. Viewed in this light, Zuckerman's disobedience of the order to comply seems venial, and did not involve the "apparent gross indifference to the rules of the court and to fair treatment of the defendant," Perry v. Sera, 623 A.2d 1210, 1219 (D.C. 1993), that our decisions require before dismissal with prejudice may be ordered. See, e.g., Chapman, 653 A.2d at 386-87 (incomplete answers to interrogatories, delayed production of documents, and repeated cancellation of depositions justified finding of willful noncompliance).
We must also consider the matter of prejudice, both to the defendant and to the judicial system. See Perry, 623 A.2d at 1219. At the time Zuckerman served his answers, more than a month remained before the scheduled close of discovery, and in the interim neither side -- Vane no more than Zuckerman -- took steps to schedule depositions. Further, no trial date had been set, and when the judge first dismissed the complaint mediation was still scheduled a month down the road, to be followed -- if unsuccessful --by a pretrial conference sixty days later. In these circumstances, although lesser sanctions might well have been proper for Zuckerman's noncompliance with his obligations, we hold that outright dismissal was disproportionate both to the level of fault he had shown and to the prejudice his conduct caused Vane or the judicial process.
Vacated and remanded.
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