Plaintiff’s Complaint Dismissed With Prejudice and Attorneys’ Fees Awarded for Discovery Abuse

The case arises out of a commercial lease.  Plaintiff alleged that it suffered damages and loss of revenue due to roof leaks which Plaintiff claims were caused by our client’s negligence.  Plaintiff also alleges that Defendant breached the lease by failing to refund Plaintiff’s security deposit, breached the covenant of quiet enjoyment by entering the leased premises without reasonable advanced notice to Plaintiff, and overcharged Plaintiff for common areas expenses.  Prominent among the issues in dispute in the case were the causes of water leaks into the leased premises and the basis for the lost revenue damages claimed by Plaintiff.

In our initial round of discovery, we requested documentation regarding the roof leaks and lost profits among other things.  In response, Plaintiff produced few documents and insufficient interrogatory responses.  A motion to compel was filed and a hearing was held before Judge Hydrick.  After the hearing, the judge ordered Plaintiff to pay $1,000.00 in attorneys’ fees and to supplement the discovery responses and produce relevant documents within two weeks of the entry of a consent confidentiality order.  The Confidentiality Order was entered in September 2012.

After depositions began, it became apparent that there were many relevant documents which were not produced.  On the last day of discovery, May 28, 2013, Plaintiff produced 80,000 pages of additional documents.  Within those documents were records showing that some of the equipment which plaintiff alleged to have been damaged by roof leaks was inoperable for various other reasons prior to the roof leaks.  Also, included in the 80,000 pages were Board of Directors meetings of Plaintiff which showed that after depositions had taken place, and long after the Board meetings themselves, the minutes of one meeting had been altered to reference the roof leak.  Only after the production of the additional 80,000 pages in May 2013 were we able to discover that the original minutes of one of the Board meetings, circulated in February 2011, included no reference to a leak.  The altered meeting minutes had been previously produced.

A hearing was held on these issues during which officers of Plaintiff were called to testify and the Court found that Plaintiff offered no credible explanation for the alteration and the production to Defendant of the altered document.  Nor did Plaintiff offer any reasonable explanation for its failure to produce thousands of responsive documents until more than one year after they were requested and several months after the court ordered deadline.

Under these circumstances, Judge Hydrick found that it was appropriate to grant the most severe sanction of dismissing the Plaintiff’s Complaint with prejudice.  After a subsequent hearing she also awarded $37,000 in attorneys’ fees and expenses for the cost of having to file these motions in pursuit of discovery from the Plaintiff.

The Defendant has a pending counterclaim against Plaintiff which is ongoing.  We expect an appeal of Judge Hydrick’s Order at some point in the future but for the time being, Plaintiff has paid the attorneys’ fees ordered by Judge Hydrick.

Let me know if you would like a copy of the Orders in this case.


About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.