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SAMPLES v. MITCHELL11/3/1997
hich should be utilized. State v. Smith, 276 S.C. 494, 498, 280 S.E.2d 200, 202 (1981) (" he mere recital of the discretionary decision is not sufficient to bring into operation a determination that discretion was exercised. It should be stated on what basis that discretion was exercised.").
Precedent reveals a more meaningful sanction was required in this case. Cf. Baughman v. American Tel. & Tel. Co. 306 S.C. 101, 410 S.E.2d 537 (1991) (Plaintiffs properly responded with information known at time, and promptly notified defendant once expert's identity became known.); Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990) (error to exclude witness's testimony where witness called to rebut unanticipated trial testimony, which was not revealed to other side despite specific inquiries during discovery); Brandi v. Brandi, 302 S.C. 353, 396 S.E.2d 124 (Ct.App. 1990) (does not appear counsel willfully violated the rule by failing to supplement interrogatories when record supports witness was discovered the night before trial); Reed v. Clark, 277 S.C. 310,
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'
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
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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