COA: Attorney fees sanction appropriate for discovery violation

The Indiana Court of Appeals has affirmed sanctions imposed on a Morgan County man after he violated discovery rules and failed to submit complete and adequate responses until almost two years after discovery was requested.

Dennis Nail sued Oliver Smith for monetary damages after he was allegedly injured in a car accident involving Smith in June 2016. But when Smith’s counsel submitted requests for interrogatories and production of documents, Nail failed to procure the complete information.

Specifically, Smith asked for information about Nail’s injuries, the treatment of his injuries, the monetary damages allegedly resulting from his injuries and potential payment of treatment costs by other sources. Although Nail responded to the first six of Smith’s interrogatories, he objected to those remaining based on a local Morgan County rule regarding the permissible number of interrogatories.

The Morgan Superior Court ordered Nail to “provide complete and signed responses” to the requests and granted additional time for discovery. But Nail argued answers about the nature, location and duration of his alleged injuries from the accident were “detailed in the medical records previously provided.” He also directed Smith to “See the medical records and billing” for information regarding Nail’s treatment and costs.

Additionally, Nail claimed he could not “remember all of the information requested” regarding the names and locations of some medical providers. His ultimate discovery response did not include any documents related to his worker’s compensation claim or Medicare payments related to the accident and his injuries.

The trial court found Nail in violation of the order to compel and imposed a $3,295 sanction. The COA affirmed in Dennis R. Nail v. Oliver N. Smith, 21A-CT-563, concluding the trial court acted within its discretion.

The appellate court noted Nail did not provide complete and adequate responses to Smith’s discovery until 15 months after being ordered to do so and nearly two years after Smith served the discovery requests. The COA also characterized his responses to certain questions as “insufficient for several reasons,” including that “they were vague, general responses that were incomplete.”

“Second, they did not show why the information was not available to Nail through his current counsel, prior counsel, and/or medical providers. And, third, Nail showed no reason why he could not timely supplement his answers as required under Trial Rule 26(E),” Judge L. Mark Bailey wrote.

“Nail’s assertion that the award is unjust because it does not compensate Smith directly for fees paid to his attorney ignores the primary purposes of discovery sanctions,” Bailey wrote. “Moreover, it is not ‘unjust’ to order as a discovery sanction the payment of attorney’s fees incurred by in-house counsel simply because that counsel was paid a salary.

“… And, as the trial court noted, to deny reimbursement of the attorney’s fees under these circumstances would thwart those purposes because a party who violated the discovery rules would never be sanctioned with an attorney’s fees award so long as the opposing party was represented by in-house counsel,” he concluded.