No. 49763-4-IThe Court of Appeals of Washington, Division One.
Filed: November 25, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 002197977, Hon. Glenna S. Hall, November 29, 2001, Judgment or order under review.
Counsel for Appellant(s), Mary R. Mann, Mann Peck, 1423 Western Ave, Seattle, WA 98101-2021.
Counsel for Respondent(s), Sheryl D. Willert, Williams Kastner Gibbs, 4100 Two Union Square, 601 Union St., Seattle, WA 98109.
Darren A. Feider, 601 Union St. Ste 4100, Seattle, WA 98111-2380.
Sheryl D. Willert, Williams Kastner Gibbs, 4100 Two Union Square, 601 Union St., Seattle, WA 98109.
Mary H. Spillane, Williams Kastner Gibbs, 4100 Two Union Square, 601 Union St., Seattle, WA 98101.
KENNEDY, J.
A few months before our state Supreme Court handed down its decision i Rivers v. Washington State Conference of Mason Contractors, 145 Wn.2d 674, 41 P.3d 1175 (2002), the trial court dismissed Willie Mieldon’s employment discrimination lawsuit against Harborview Medical Center and others, with prejudice, for willful and repeated violation of the court’s discovery orders, because Mieldon’s counsel unilaterally cancelled a discovery conference that the court had scheduled to address the discovery violations, and for behavior that the court believed amounted to spoliation of evidence. Mieldon appeals. The record clearly supports the trial court’s finding that Mieldon engaged in willful and repeated discovery violations. In light of Rivers, however, we reverse and remand for a new determination of whether Mieldon’s lawsuit should be dismissed, in part or in its entirety, as a sanction for those violations. Although the trial court stated in the order that it had considered and rejected lesser sanctions and it is clear from the face of the order that the court did consider and reject the lesser sanctions of dismissing Mieldon’s claims of failure to accommodate a disability, wage loss, and retaliatory treatment of Esther Mieldon, while allowing his remaining claims to go forward the court failed to explain why it considered these lesser sanctions to be inadequate. Nor did the court make an affirmative finding of substantial prejudice to the defendants’ ability to prepare for trial. Although there is evidence in the record that we believe would probably support the missing findings, we are prohibited by Rivers from affirming on that basis.
FACTS
On July 25, 2000, Willie Mieldon, on behalf of himself and his wife Esther Mieldon, sued Harborview Medical Center, its chief executive officer, his former supervisor David Jaffe, the University of Washington, and the State of Washington (collectively “Harborview”) claiming that Harborview wrongfully terminated his employment, discriminated against him on the basis of race and disability, retaliated against him and his wife for engaging in protected activity, and violated his right of free speech. An order setting the case schedule was entered, with December 17, 2001, as the trial date, October 29, 2001, as the discovery cutoff date, September 10, 2001, as the deadline to change the trial date, and July 16, 2001, as the deadline for disclosure of possible primary witnesses. Harborview denied Mieldon’s claims and, on November 6, 2000, served Mieldon with a set of interrogatories and requests for production. Under CR 33(a), the answers and responsive documents were due in the office of defense counsel on December 6, 2000. They did not arrive. On December 11, 2000, defense counsel wrote Mieldon’s attorney, Mary Mann, requesting production that week. By letter dated December 15, Mann stated that she and her staff were working on the answers, and she requested a 30-day extension to January 15, 2001. Defense counsel agreed to the extension.
No answers or responsive documents were provided by January 15. On January 16, defense counsel called Mann. Mann stated that she had two appellate briefs due, promised to provide the requested discovery, and requested another extension. The parties then agreed that if Mann did not respond within three weeks, the parties had conducted the appropriate discovery conference to permit a motion to compel. Mann failed to provide the discovery responses by the new agreed deadline of February 6, 2001.
1. First Motion to Compel and Order Granting Same
On February 13, 2001, because Mieldon still had not responded to the discovery request, Harborview filed a motion to compel. On February 16, Mann filed a response in which she acknowledged that defense counsel had extended a reasonable extension of time, claimed that extraordinary circumstances (her paralegal’s sprained wrist, an office move, and deadlines in other cases) had impeded her ability to complete her client’s response to discovery within the agreed-upon time period, offered to pay $200 as a sanction for the delay, and promised to deliver the answers and documents to defense counsel by February 20. Mann produced 32 single-spaced pages of responses to the discovery requests on February 20.
That same day, the trial court signed an order to compel that ordered Mieldon to answer the first set of interrogatories and requests for production by February 21, and to pay terms of $350. However, the order was not entered until February 22, and Mann did not receive the order until February 23. Harborview did not contest the completeness of the responses until nearly six months later. On August 17, 2001, defense counsel sent Mann a letter (1) detailing deficiencies in Mieldon’s responses; (2) requesting payment of the $350 sanction; (3) attaching proposed stipulations for a protective order and for release of Mieldon’s unemployment records; (4) proposing August 21, 2001, as the date for defense counsel to review the documents Mieldon had said were available for inspection at Mann’s office; and (5) scheduling a CR 37 conference for August 24, 2001.
The order setting civil case schedule obligated counsel to file a status report by August 20, 2001. Consistent with the August 17 letter to Mann, defense counsel noted in Harborview’s August 20 status report that “[p]laintiff has answered defendants’ first set of interrogatories and requests for production. Defendants have requested plaintiff to supplement answers that defendants believe are deficient.” Mann submitted her status report late, on August 29. Her status report indicated that six to nine months would be needed to coordinate the rest of discovery, given counsels’ trial schedules, and that a motion to continue the trial date was being prepared. But no such motion was ever filed.
Mann agreed to make documents available for review by defense counsel on August 23. But on that morning, Mann’s office advised defense counsel that the majority of the documents were off-site or otherwise unavailable for review. The document review and CR 37 conference were rescheduled for September 6 and 7, respectively. On September 6, after Mann again sought to reschedule the document review, defense counsel sent Mann a letter (1) emphasizing the need to address discovery issues immediately because of the impending discovery cutoff date; (2) rescheduling the document review for September 11 and the CR 37 conference for September 14; and (3) reminding Mann that Harborview was still waiting to receive executed copies of the proposed stipulations for protective order and release of unemployment records, as well as the supplemental answers and document production requested in the August 17 letter.
On September 10, defense counsel sent Mann additional stipulations and authorizations for release of employment, employment security, tax, education, military, workers’ compensation, and medication records.
Also on September 10, Mann called to advise defense counsel that the documents Mieldon said would be produced would not be available for review on September 11 as agreed, and rescheduled the document review for September 13. Mann also canceled the CR 37 conference that had been set for September 14, rescheduled it for September 24, and then, on September 21, once again canceled it, this time without providing any alternate date.
On September 13, 2001, counsel for Harborview came to Mann’s office and inspected a box of documents that had been culled from over 25 binders and other sources. Mieldon alleges that all of the documents discussed in the August 17 letter, and required by the trial court’s February 20 discovery order, were produced at this time.
Nevertheless, on September 26, 2001, defense counsel sent Mann a letter requesting an additional date for the CR 37 conference, reminding Mann of the outstanding stipulations, and listing seven continuing discovery “concerns” regarding the discovery that had been requested in the August 17 letter and ordered by the court. Of the noted concerns, one requested additional information, one requested clarification, and the other five stated that the documents were non-responsive or incomplete. Defense counsel also began requesting, for the first time, an independent medical examination of Mieldon. Mann contends that Harborview’s attorneys were advised, as early as August 29, 2001, that her trial schedule would make discovery virtually impossible in the months ahead and that continuances would be necessary, but that Harborview’s attorneys, in spite of that knowledge, only pressed harder, and ultimately resorted to filing another motion with the trial court.
2. Second Motion to Compel and Order Granting Same
On October 5, 2001, Harborview filed its second motion to compel on grounds that Mieldon had not complied with the court’s February 20 discovery order to answer discovery completely, had failed to pay the $350 sanction, and had repeatedly rescheduled and canceled the requested CR 37 conference.
Mann’s October 12 response to this second motion to compel was not timely filed or served. KCLR 7(b)(3)(E) requires that opposing papers be served no later than two court days before the motion is to be considered. Mann’s response was served on the Friday before the Monday hearing date.
In the late response, Mann (1) acknowledged that Harborview had made efforts to hold a discovery conference, and that her staff had been unable to schedule a conference because of the demands of yet another trial, but nevertheless blamed defense counsel for filing the motion without first conducting a discovery conference; (2) claimed that without a discovery conference she could not determine what discovery was still outstanding; (3) stated that her staff was working to cure the discovery deficiencies to defense counsel’s satisfaction; (4) conceded that the court-ordered $350 sanction had not yet been paid; and (5) asserted that there was no need for another CR 35 medical exam because one had been conducted by the same expert in Mieldon’s first lawsuit.[1]
In addition, Mann claimed that a tape recording that Esther Mieldon purportedly made of an NAACP representative’s presentation at a Minority Affairs Council meeting at Harborview had been given to the NAACP and was no longer in Mieldon or his counsel’s possession. Mieldon had identified the tape in his initial discovery responses as relevant to his allegations, but said at that time that he would seek a protective order before producing it. No such protective order had been sought.
Finally, Mann asked the court to order that a discovery conference be held during the week of October 22 and that she and Mieldon be given 10 days thereafter to address any deficiencies in Mieldon’s responses, despite the fact that the discovery cut-off date was October 29, 2001.
On October 15, 2001, the trial court granted Harborview’s second motion to compel and ordered Mieldon (1) to cure the discovery deficiencies Harborview had identified in its August 17 and September 26 letters, by October 22, 2001; (2) to submit to an independent medical examination on a date between October 22 and 29; and (3) in addition to the previously ordered $350 sanction, to pay $500 no later than October 22, 2001. The trial court denied Mann’s request for an extension of the discovery cutoff date. On October 19, 2001, the trial court entered an order on pretrial conference, in which it confirmed that trial was to begin on December 17, 2001.
3. Motion for Sanctions for Continued Incomplete Compliance
On October 22, 2001, Mieldon paid the $500 sanction (we cannot determine from the record whether he ever paid the earlier $350 sanction) and submitted supplemental information regarding his self-employment efforts and regarding additional witnesses.
On October 23, 2001, Harborview filed a CR 37(b)(2)(C) motion for sanctions, alleging that Mieldon still had not fully complied with the trial court’s October 15 order. In its motion, Harborview alleged that Mieldon still had not provided (1) discovery on his claimed disability and requested accommodations; (2) stipulations for release of his workers’ compensation and social security records; (3) the NAACP/Minority Affairs Commission tape; (4) complete records on his various businesses; and (5) stipulations for release of his employment, education, military, tax, and social security records. Harborview asked the court to dismiss the action, or alternatively to strike specific portions of the complaint, as a sanction for Mieldon’s alleged noncompliance with the discovery orders.
On October 25, Mieldon provided supplemental responses to discovery in which he alleged that he had responded to and answered, to the best of his ability, all of the remaining discovery requests and deficiencies. Harborview claimed that discovery was still incomplete however, pointing to the failure to produce the NAACP tape, failure to produce business records from 1999, and failure to document lost wages. Mieldon claimed for the first time in his supplemental responses that the tape had not been in his possession since the date of the lawsuit, and thus he had been in error in saying that he would seek a protective order before producing the tape. He also said that the other missing documents were `ready for review.’ Mieldon argued that completed discovery obviated the need for a CR 37 conference.
4. Trial Court’s Order Dismissing Mieldon’s Complaint
On November 1, 2001, while Mann was in court in another case, the trial court’s bailiff called the parties and scheduled a hearing on the motion for sanctions for 8:45 a.m. on November 2. Later that day, after the court closed, Mann called the court and left a message, and then called defense counsel to advise that she could not attend the hearing because she would be en route to court in Grays Harbor on the morning of November 2. Mann’s associate stated that the parties agreed that another date would be sought for the hearing. But when Mann’s associate called the court the following morning to arrange rescheduling of the hearing, he was told that it was imperative that Mann contact the court immediately. Mann subsequently contacted the court by telephone, but by the time that she did so, the court had already signed the order that is the subject of this appeal.
The order the trial court entered on November 2 granted Harborview’s motion for sanctions under CR 37(b)(2)(C), and dismissed Mieldon’s complaint in its entirety. The court handwrote onto the proposed order that Mieldon had willfully and repeatedly violated court orders compelling discovery, had engaged in behavior amounting to spoliation of evidence, and had unilaterally cancelled a court ordered discovery conference that very day.
The court then stated that it had considered and rejected lesser sanctions.
The court also struck out a paragraph in the proposed order that would have imposed the lesser sanction of dismissing Mieldon’s claims regarding failure to accommodate a disability, wage loss, and retaliatory treatment of Esther Mieldon, but that would have allowed the remaining claims to proceed to trial. On November 9, 2001, following a telephone hearing, the trial court denied Mieldon’s first motion for reconsideration. On November 29, 2001, the trial court denied Mieldon’s second motion for reconsideration. Mieldon alleges that before the second motion for reconsideration was denied, he provided the trial court with the entire record showing how he had complied with the court orders by responding to each and every document production and interrogatory answer that previously been allegedly unresponsive. Mieldon then appealed to this court.
ANALYSIS
CR 37(b)(2)(C) provides that if a party fails to comply with a court order, the court “may make such orders in regard to the failure as are just,” including:
An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party[.]
Likewise, CR 41(b) provides a trial court with the authority to dismiss an action for non-compliance with a court order or court rules. Despite the fact that courts have the authority to dismiss a case for discovery violations, it is general policy of Washington courts not to resort to dismissal lightly. Rivers v. Washington State Conference of Mason Contractors, 145 Wn.2d 674, 686, 41 P.3d 1175 (2002); see also Burnet v. Spokane Ambulance, 131 Wn.2d 484, 498, 933 P.2d 1036 (1997) (the underlying principle guiding courts is that the law favors resolution of cases on their merits and not on the basis of punishing wrongdoers for discovery abuses). Moreover, before ordering the drastic sanction of dismissal, a trial court must consider on the record (1) whether the refusal to obey the discovery order was willful or deliberate; (2) whether the party’s actions substantially prejudiced the opponent’s ability to prepare for trial; and (3) whether a lesser sanction than dismissal of the action in its entirety would have sufficed. Id. The trial court’s reasoning with respect to each factor must be clearly stated on the record, so that meaningful review can be had on appeal. Id. at 685.
We review the trial court’s order of dismissal and its denial of Mieldon’s two motions for reconsideration under the abuse of discretion standard. Rivers, 145 Wn.2d at 684-85 (the abuse of discretion standard governs review of sanctions for noncompliance with discovery orders as well as motions for reconsideration). Failure to make the explicit record that is required for appellate review constitutes an abuse of discretion. Id. at 696. An appellate court cannot compensate for the lack of explicit trial court findings by independently reviewing the record to determine whether the trial court’s ruling was reasonable in all the circumstances. Id. at 699-700. Express Findings on the Record Although the record fully supports the trial court’s finding that the discovery violations were repeated and willful, and that Mann unilaterally cancelled a court-ordered discovery hearing, reversal and a remand is necessary because the trial court failed to expressly state, on the record, all of the required findings and the reasoning behind those findings, before issuing its order of dismissal.
The order of dismissal stated:
(1) Plaintiff has willfully and repeatedly violated court orders re discovery; (2) Plaintiff’s counsel unilaterally cancelled a court ordered discovery conference [that very day]; (3) The court has considered and rejected lesser sanctions in this matter; and (4) Plaintiff has engaged in behavior amounting to spoliation of evidence.
Clerk’s Papers at 442. The court also struck out a paragraph in the proposed order that would have dismissed Mieldon’s claims regarding failure to accommodate a disability, wage loss, and retaliatory treatment of Esther Mieldon, but that would have allowed the remaining claims to go forward.
In Rivers, the Supreme Court stated:
The record does not indicate that the court actually used the words “Fairweather Masonry Company was prejudiced,” even though the court referred to numerous missed discovery and case schedule deadlines and violation of a court order which warned Petitioner of dismissal if she did not comply with those deadlines. Respondent’s motion to dismiss noted that Petitioner’s inadequate answers and unexcused delays had left Respondent ill prepared for a trial which was scheduled within about three months.
The Court of Appeals concluded it was apparent from the record that Petitioner’s failure to disclose basic facts substantially prejudiced Respondent’s ability to prepare for trial. However, that conclusion was not affirmatively stated on the record by the trial court.
145 Wn.2d at 698. In this case, the trial court made no finding that Harborview had been substantially prejudiced in its ability to prepare for trial. Although a finding of substantial prejudice might be inferable from the finding that evidence had been spoiled (this finding is seemingly based on Mieldon’s failure to produce the NAACP tape after having stated in his first response to discovery that the tape was relevant), without an explicit finding of substantial prejudice, and a more thorough explanation of how the defendants were prejudiced, the trial court’s order is incomplete under Rivers.
It is clear enough from the record in this case that the trial court considered and rejected the lesser sanction of dismissing only part of Mieldon’s claims, rather than all of them, because the trial court struck that alternative from the proposed order presented by defense counsel. But the court failed to explain on the record why it considered that or any other lesser sanction to be inadequate.
Accordingly, we reverse the order dismissing Mieldon’s claims and remand for a new determination of an appropriate sanction for the repeated and willful discovery violations in this case, which determination must be supported by explicit findings as required by Rivers.
BAKER, J., concur.