Post Process

Everything to do with E-discovery & ESI

Case Blurb: Tschirhart; Factors to examine before dismissing a case, 5th Circuit

Posted by rjbiii on September 4, 2007

To support the severest sanctions under Rule 37(b)-striking pleadings or dismissing a case-the Fifth Circuit has usually required a finding of bad faith or willful conduct. Arista Records LLC v. Delina Tschirhart, 241 F.R.D. 462 (W.D. Tex.) (citing Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990)).
When a defendant demonstrates flagrant bad faith and callous disregard of its responsibilities, the district court’s choice of the extreme sanction is not an abuse of discretion. Id. (citing Emerick v. Fenick Industries, Inc., 539 F.2d 1379, 1380 (5th Cir. 1976)).
The Fifth Circuit has specifically required, in addition to a finding of bad faith, several factors which must be present prior to dismissing a case for violating a discovery order. Those factors include:

  • The violation must be attributable to the client instead of the attorney;
  • The misconduct must cause substantial prejudice to the opposing party; and
  • A finding that less drastic sanctions would not be appropriate. To support the severest sanctions under Rule 37(b)-striking pleadings or dismissing a case-the Fifth Circuit has usually required a finding of bad faith or willful conduct.

Id. (citing FDIC v. Connor, 20 F.3d 1376, 1380-81 (5th Cir. 1990)).

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