WA Appellate Court Affirms “Death Penalty” Sanctions For eDiscovery Violations
The Washington Court of Appeals considered whether a trial court violated Defendant’s due process rights when it entered a default judgment following Defendant’s willful and repeated violations of discovery orders in Crews v. Avco Corp., No. 707-56-6-1 (Wash. Ct. App. March 6, 2015).
The underlying case arose from airplane crash. Plaintiff was the husband and personal representative of the estate of the deceased. Defendant Avco was the plane’s engine manufacturer, and Defendant Precision installed a carburetor float in the engine. Avco initially objected to 27 of 30 RFPs but produced some limited ESI.
Plaintiff moved to compel further production from Avco, and in support of its motion, attached a “smoking gun” email chain from the other defendant’s production, which appeared to evidence Avco’s knowledge of a defect in a carburetor float in the engine. The email from Avco stated that the defect would lead to “functional issues” in the engine. Plaintiff presented the email to the court to demonstrate Avco’s failure to adequately comply with its discovery obligations.
The court granted Plaintiff’s motion and ordered Avco to comply with Plaintiff’s discovery requests. Avco still produced no further production despite the court’s order. The court subsequently found Avco to have willfully violated its discovery order. The court ordered that Defendant fully comply and provide Plaintiff with a detailed description of how it identified and located documents. Avco did not produce any additional documents, but argued that due to its document retention policy, many documents (including the smoking gun email produced by the other defendant) no longer existed on its computer system. Avco did not support this assertion with any employee affidavits or other evidence.
Plaintiff moved for a default judgment. The court considered Avco’s “continued [and willfull] disregard and violation of the discovery and contempt orders,” and concluded that “death penalty” sanctions were proper, thus entering judgment in favor of Plaintiff as to liability and causation. A jury returned a verdict over $17 million.
The Washington Court of Appeals affirmed the trial court’s decision, noting that the trial court found Defendant’s refusal to obey the discovery orders willful and deliberate. The court also noted that the violations had prejudiced Plaintiff, and that Avco had ample notice that failure to comply with discovery and contempt orders could result in “death penalty” sanctions.