Commercial Litigation and Arbitration

Inherent Power & Rule 37 — Novel Sanctions for Discovery Abuse & Spoliation

District Judge T. John Ward found serious discovery abuse on the part of the defendants in Juniper Networks, Inc. v. Toshiba Am., Inc., 2007 U.S. Dist. LEXIS 50096 (E.D. Tex. July 11, 2007). There is nothing novel in that. Some of the sanctions that he imposed, moreover, under the Court’s inherent power and Rule 37 were not unusual: preclusion of certain expert testimony, an adverse inference for spoliation, and attorneys' fees. Others, however, were unique. Specifically, he entered an order that:

1. Limited the defendants' time for voir dire to one-half of the plaintiff’s;

2. Removed two juror strikes from the defendants, leaving them with a total of 2, while the plaintiff received 4;

3. Limited the defendants' time for opening statements to one-half of the time given to the plaintiff; and

4. Limited the defendants' time for closing statements to one-third of the amount of time allotted to the plaintiff.

I am not sure that the limitation of voir dire is terribly significant, especially if the plaintiff inquires first, but the strikes, the opening statement and final argument sanctions are going to motivate serious settlement talks, if anything will.

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