judgment the what the p c discretion entering a default order as well as the damages issues raised and both the appeal across appeal who it is that if you would concentrate your arguments on the  entered as a discovery sanction a first resort and that is precisely what happened here quite literally the first time mr lookouts have complained to the circuit court regarding the discovery responses provided by the circuit court did not enter any lesser sanction than the most severe available a default and the president is quite clear that default is the most severe sanction as a result it has to be used only as a last resort when nothing else in the court circuit courts arsenal of sanctions will ensure the prime prime goals of discovery in a crime calls the discovery sanctions which is completion of discovery and a trial in the clear that issues unrelated to the completion of discovery which the initial d fault certainly was that was regarding the answer to the response the complaint to pleading response to the complaint was unrelated to discovery that was that was merely a response of pleading issue a marriage of lie actually involved quite severe conduct it was not minor conduct on part of the person sanctioned marriage of why the individual had kidnapped his daughter in violation of a court of a court order regarding the treatment of his daughter but the appellate court made quite clear that that issue could not be used to justify sanctions and that's with good and that's a very good reason because voters unrelated to discovery do not implicate the willingness to comply did not show that the party being sanctioned was not willing to comply with discovery that no amount of sanction would previous sanctions previous problems in the case obviously it's for the same case indicate that the party will never comply with discovery that nothing the circuit court could do no sanction of any kind would result in discovery you know what we don't deny that we could not deny that you did this or there there is a whole host of options  a procedure we can't meet that deadline because of x y and z give us more time rather then or through the rule be that a party can just ignore the court order that says a deadline to begin work because they can't make that would have been paid in the litigation to move forward on the merits a few points are very important here first when the default was entered discovery responses had already been submitted by the defendants there were answers from you know as as this course point out as a whole course for multiple times that the point of increasing discovery sanctions start level and move up is that it encourages the completion of separate but default there are strong incentives for letting it not to comply that actually incentivise is a litigant too because they can take it they can take an appeal and challenge the sufficiency of the complaint to not comply with discovery and actually counter x x the good runs counter to the it wasn't paid on time may have been paid so apparently the fact that monetary sanctions are out there did not seem to concern the city when it came to discovery otherwise you would have thought that  that satan would have had some kind of effect on the city so that connect with discovery they would have been more forthcoming i would not say that they did not concern the city the record doesn't indicate that a you know if a court sets orders and days how do we as a court ensure the parties comply with their orders it's through the sanctions process but again a default completely precludes any travel the merits which is the ultimate goal that it will depend from case to case that's why it's difficult for me to to synthesize a appropriate sanction here because it will turn on the case will turn on what the concerns the circuit court has at in determining the appropriate for the well the first is as we highlight in our briefs whether any lesser sation than a default would encourage would coerce the party to comply of discovery and discovery was being complied with and  also the court has to believe that it could when it enters the default the court has to believe that it could not possibly impose a sanction less than default that will encourage discovery but here the court seemed to believe the discovery was just going to proceed anyway it continued order that in the sense that it imposed a sanction was unfair there's actually an order in the record that at one point says the sit in a cave the city was not in default so i'm not sure what the what was the meaning of that particular order the next story t hat followed said the city was again in default but there was the court seemed to believe even at the very end even when there was that there was some issue regarding a motion to vacate where the court was indicating that it wanted discover some post judgement post default we were that were i believe so but i am not exactly sure as to which of the judges heard these because there were judges switching back and forth but the issue was the court itself indicated that it believed that discovery was ongoing and that discovery be completed and this also highlights a problem with entering default as a sanction of first resort here the city offered the one piece of discovery those not complete the the deposition for the purpose of continuing discovery as it seems to be the case here only short circuits the entire discovery process it leaves the opposing party in a position to say to hold the litigation hostage and that is exactly what happened here effective people will comply with my orders if i just default them and then hold that over their heads because again there are issues with compliance by the opposing party other issues with will the circuit court actually vacated  by the circuit court whether that will happen will there be a great deal of expense spent by a party if it's a large corporation for instance if it's extensive like the discovery there are is a lot of doctors production there could be a great deal of expense in appropriate exercise of discretion is a different issue that if i do not believe that the litigant is informed i have a motion i have a motion to compel before me i'm just going to default you if you don't start complying and then you still feel is the default good reason i do not believe so i do not believe necessarily so odd because a number of circumstances could could intervene could be difficulty as know using the contessa deposition as an example of this controversy and here it appears the problem here was difficulty in scheduling a time that she was actually working that was trying to find a time to fit in her schedule that she could come in so you know there may be issues of per progress of sanctions that might be beyond monetary so it may only be one monetary sanction and then a certain witness might be stricken or another certain fact might be deemed  admitted certain issue might be taken out of contention there are a host of different sanctions so i cannot speak to how many because i'll turn on case to case to case and that's for the that's for this question of the supreme court which was just simply not exercised here it just entered a default did not take into account any circumstances in deal when it did not even humor the possibility that a lesser sanction more than you know whether a higher monetary sanction or something other than my face h about less than a that that the court was not formally on the record informed of this fact does not make it less an abuse of a scratch does not make it less of a devastating impact on the ultimate goals of discovery stand up for itself or where we will be because i believe the court should make sure that justice is done and make sure that that trial that the that the primary goals of discovery are not frustrated and that as a trial on the merits which did not occur here no trial the merits occurred here that is all the city was requesting as far as that discovery goes and that was clear from the getting a trial on the merits and that was not had that's that's not a high standard but it's not  that's the same request that every defendant makes city that said oh my god we're going to lose all this money if we don't snap to it and get our act together i cannot cannot speak to that that is outside of my but again also to highlight what exactly this controversy ones she was being called in her in regard to document production to her knowledge of the documents produced that the default was that the city was defaulted and that two million a two million dollar judgment was entered because of a record keeper not being opposed to when certain defendants had no real it could have no relation at all to mr  don't have any power over her in the default was entered against her as she is not clear from the record how about was how that severe of a sanction was justified against them when they had no unusual power to compel her to take a deposition and that certainly there were were there entered a default that was vacated the sanctions the hurries he sanctions that were laid if that were paid and then the first time mr lowe cast a complaint about about discovery a default centered and that is squarely to be a sort of scratch and it frustrate the purpose of the discovery for better the trial from being held the merits as all the city requested in this case was a chance to be heard be heard for its witnesses for the evidence to be considered and that did not happen here and we submit that was a clear so this is clearly no situation where the sanction was a first resort i've had to put together an outline because of the amount of orders which were entered  and the sanctions prior to the discovery sanctions and then the sanctions after the initial discovery sanctions were put into effect with the thinking before the coverage here that the with the answers acre well it had you the answer and misrepresentations made to the court they retracted the exact same motion which was heard on may eleventh of two thousand and nine and on december the move motion to dismiss it was identical word for word with i think one sentence was different they made a representation to the court that it was on different grounds there was no different citations it was not on different grounds whatsoever but this one thirty so that's one thirty seven who broke in and what is the purpose of one thirty seven discovery consistent with the rules of civil procedure and orders specifically before the courts that the litigants practice that's not to punish them as it is not a farce and i thought so so there's a very different purpose between one thirty seven and two nineteen and why would the one thirty seven have anything to do with the two nineteen well because the case you can't take the case in a vacuum you've got to look at the case from its inception and perfect sense that one thirty seven should not enter into the court's consideration of two nineteen because the objectives are different in and out what is being complained  different one of the main objections in any form of litigation is to try to case on the merits right so that didn't happen because of the conduct of the defendant that's why one thirty seven sanctions runner and that's why two sections were right or who put it the one thirty seven were thinking they were vacated after the city agreed that they were vacated we had to have about four hearings before the city would agree to make any payment which which ultimately they never did and the court ordered payment and then they made a payment three months late and then disk then we were kicked back into the discovery mode and i'm thinking as any litigant would after such a suit you know such a  severe misconduct by the defendant that everything was going to go as a matter of course and that we would utilize the rules governing practice the rules of civil procedure is mostly you can sue most closely you can still have the right of the court to say hey judge you know we're not getting discovery most living in its utilize  the code civil procedure and they go back and forth in accordance with codicil procedure and they have an open exchange of discovery when there's a problem with an open discrete strange discovery then you go to the court and say judge we're not having an open exchange discovery here in this specific case we did not have that we had to we were we tried that we sent the defendants fourteen to one ok requests for discovery there was and were entered when the case was when they were not the same before before the first sanction before the first things before the first sanctioned run yet but again  twenty second order was entered on your bill twenty first there was an order entered requiring all discovery to be completed by meg because this case is it has such a long history and were already a year and a half into the case and not a single document that a single sheet of paper was produced by the city and i produced over two thousand pages of records so you post twenty first they have until the end of may that to answer iraq good stories and produce documents they don't do that i continue to write the letter saying what's going on here in violation of the court's order what are you going to do what are you to do i need the records i get these these responses saying well by then by the next time we get the court you should have some documents that's not in compliance with that that's already said you know a court we're not going to agree with you may twenty fourth date that was set in april you know we're just going to do what we want to do and if we get there we might have some doctors we might not we might answer some of our affairs when we might not so i continue to pay for them saying look if they don't get these documents i'm going to ask for  twenty second so i don't get by july twenty second i don't get a single sheet of paper ok so this is in violation of that april order in the prior war which which put the case back into the discovery mode entered  it was the first time the court had an opportunity to determine what if anything to do about the lack of cooperation and the first thing the court does is follow your lead and say you lose it and then if it holds after that we've got eight additional violations of court orders and not not producing doctors not producing witnesses went to court on september sixteenth of two thousand and eleven says when they produced documents they did produce one to get with you are entitled so the but the question is still for us these a b how do we do that in fact in this case the the tories or divakar quest and so forth we can see some back and forth in him finally after a number of months the only thing left was a deposition and it's then that the building comes down so then we go you haven't produced this witness mr came to depose this witness the day before you said you're going to produce or we show up and she and she's not presented for the deposition and i just then just a small step step back and say ok judge you know just let's keep doing this comes and says to me you know i've been denied my deed court i did not receive all the process i was in fact this large judgment was  parties will not be effective unless trial courts do not countenance violations and unhesitatingly impose sanctions proportionate to the circumstances so in this particular case the trial judge gave them every he says no i'm not going to grant a motion to vacate at the fault and then we have well isn't that because judges are usually reluctant to me he was sent to him for proven true i can understand the judge saying and he did say go back to judge or compliance then we're going to essentially look at this you know from from a new new focus and then you know we're going to go on with discovery as we should go on but when the scope happens over and over and i'm going to say over you know eight times but that's a sanction a default judgment right under under two nine hundred see it think it's five a default judgment is is is one of the most severe sanctions handed a fall not of the fault judge at the end of the ca when it was said for prove up then a default judgment is entered and i took her twenty seconds and then the case goes on november third four for the proof of so so and if you compare this case to any othe there was at least a sentence that was different in those in those motions and that there's nothing in the record is as your honor noted if it's not the record that i did not happen but there's simply nothing the record indicates that these supposedly false representations are in the motion thermate there's nothing in the record a second it's completely false this mr look ass's representation that he received no sheets of paper in response to his discovery requests on july twenty first this is it on the record on the main record seven and that's just merely what's in the record it was filed in the court so to say that no responses were made prior to the entry of the default sanction it was flatly false and it's clear from from the record that the that the defense were complying with discovery furthermore the record indicates again a factor that should be taken into account and at least one of the e mail exchange i believe is an e mail exchange might have been a letter exchange of trial counsel explain that he was in the midst of trial while preparing these responses and that he grievous case than any that's come before that's flatly untrue there are there are cases that involve individuals refusing saying i will not comply under any circumstances i do not believe i should comply that was not what happened here the defendants were complying and at the end of the day when the default sanction became a default judgment after the prove up all that remained was the deposition of a record keeper and certainly a more limited sanction than a default could have been entered that would have accommodated that fact and move the sun to a trial on the merits that it was merely a record keeper the deposition of record keeper i'm it's unclear mr cusses never explained what substance what substance for his claims or what substance that would undermine the defendant's defense would have come from the record keeper mis contar c and that resulted because mr castro refused to take refused to take that deposition as we argue he waived that deposition by refusing to take what was offered october twenty first they were so the city was still offering that deposition it would be that request was rave waived outright but that was also what the circuit court thought should prevent a full trial on the merits was a deposition