This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 WILLIAM DUNCAN and 2 DEBRA DUNCAN, 3 Plaintiffs-Appellants, 4

v. No. 33,800 5 PATRICIA ANDREWS, M.D., and 6 THOMAS S. GORMLEY, M.D., 7 Defendants-Appellees. 8 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 9 Darren Kugler, District Judge 10 Frederick H. Sherman 11 Deming, NM 12 for Appellants 13 Keleher & McLeod, P.A. 14 Thomas C. Bird 15 Kathleen M. Wilson 16 Hari-Amrit Khalsa 17 Albuquerque, NM 18 for Appellee Andrews 19 Krehbiel & Barnett, P.C. 20 Lorri Krehbiel 212 Chance A. Barnett 1 Albuquerque, NM 2 for Appellee Gormley 3 MEMORANDUM OPINION 4 FRY, Judge. 5 {1} Plaintiffs William and Debra Duncan appeal the district court’s dismissal of 6 their medical malpractice suit against Defendants Dr. Patricia Andrews and Dr. 7 Thomas Gormley, arguing that the district court’s use of dismissal as a sanction for 8 discovery violations was improper. We disagree. 9 BACKGROUND 10 {2} In October 2011, Plaintiffs brought a me dical malpractice claim against Drs. 11 Andrews and Gormley for their failure to monitor, diagnose, and treat Mr. Duncan’s 12 slightly elevated prostate (PSA) test results until the levels indicated that he had an 13 aggressive form of prostate cancer. Defe ndants requested discovery of Plaintiffs’ 14 medical records in November 2011. Plaintiffs informally indicated that they were 15 “working to get” the records, but refused to give Defendants releases so that they 16 might retrieve the records themselves. 17 {3} During the discovery period, Plainti ffs scheduled depositions, including of 18 Defendants, without informing opposing c ounsel. On November 28, 2011, Defendants 193 moved for a protective order to prohibit Plaintiffs from taking depositions prior to 1 submitting Mr. Duncan’s medical records, stating that Defendants would be unable 2 to prepare their defenses until the records were provided. They also moved to compel 3 Plaintiffs to respond to in terrogatories and requests for production. At a hearing in 4 March 2012, Plaintiffs stated, “[W]e’veprovided everything that we have.” 5 Defendants noted, however, that they had not received critical information on prior 6 primary care physicians and prescription me dications that Mr. Duncan was taking 7 from other doctors while under their care. Plaintiffs acknowledged that such 8 information would be relevant, but again refu sed to give Defendants releases to obtain 9 the information themselves on the ground that Plaintiffs’ counsel should “get[] to see 10 all this stuff first.” 11 {4} The district court concluded that “discovery needs to be far more complete than 12 it is at this time,” and ordered Plaintiffs e ither to provide full medical records for the 13 past ten years or to “file specific motions for protective orders or claiming privilege.” 14 If the Plaintiffs were unable to obtain the full records by April 15, 2012, the court 15 required them to provide releases so Defendants could attempt to obtain the records 16 themselves. At the court’s request, defense counsel put the verbal decision into a form 17 written order. Plaintiffs refused to sign the order because it did not include language 18 permitting them to withhold documents on “p rivacy” grounds. They did not articulate 194 any objections to the order in writing, as required by Rule LR3-212(F)(4) NMRA. At 1 a second hearing on April 10, 2012, the distri ct court confirmed the order’s existing 2 language, adding only that Plaintiffs were obliged to disclose the medical records 3 within ten days of their receipt. The order was finally filed on April 24, 2012. 4 {5} Over a year later, on June 6, 2013, De fendants filed a second motion to compel, 5 stating that Plaintiffs had failed to “provide answers and responses to Defendant[s’] 6 written discovery requesting a medical authorization,” as well as a “comprehensive 7 and true” list of all Mr. Duncan’s medical providers. Though some depositions had 8 already been taken, Defendants had “recentlybecome aware of a substantial number 9 of additional medical providers not listed inPlaintiff[s’] answers” and consequently 10 realized that it was “uncertain” whether Pl aintiffs had disclosed all the information 11 required of them under the April 24, 2012 order. Defendants had made a second set 12 of written discovery requests in April 2013 because they had received neither the 13 complete medical records nor the releases necessary to seek such information 14 themselves. Plaintiffs still refused to providecertain information, citing concerns over 15 privacy and relevance. They also did not provide any medical authorization or releases 16 to Defendants. 17 {6} Defendants’ second motion to compel included records from Dr. Tami Breton, 18 Mr. Duncan’s primary care physician from 1998 to 2004, immediately before he came 195 under Defendants’ care. Defendants had not received any records from Dr. Breton, 1 which they argued were “vitally important to [their] de fense because Dr. Breton had 2 discussed with Mr. Duncan the significan ce of his Prostate Specific Antigens (PSAs) 3 . . . and ordered PSA tests.” Defendants had attempted to request the records from Dr. 4 Breton directly, but Plaintiffs had not rel eased them to do so. Plaintiffs indicated to 5 both Defendants and the district court that all good faith efforts had been made to 6 obtain the records, but that they were “unavailable.” Plaintiffs did not provide 7 documentary evidence of any atte mpts to acquire the records. 8 {7} When Dr. Breton was deposed on July16, 2013, she arrived with over a 9 hundred pages of medical records. Both parties were “surprised.” Dr. Breton stated 10 that Mr. Duncan’s records had been in storage, but to her knowledge she had not 11 received any medical release or request fro m Plaintiffs. She testified that according 12 to her custom and practice, any such reque st received would have been in her files. 13 She did have a copy of a request by Dr. Andrews, which had been denied for lack of 14 authorization. 15 {8} Defendants moved to dismiss Plaintiffs’ suit with prejudice as a sanction for 16 their failure to participate in discovery. Defendants argued that discovery from 17 Plaintiffs had been erratic and incomplete , with relevant records from years earlier 18 continuing to arrive far past the deadlin e in the April 24, 2012 order. All told, 196 Defendants identified thirty-eight medical providers indirectly revealed during the 1 course of discovery from whom they had not received complete records. Plaintiffs 2 argued that they had “followed [the April 24, 2012] order to th e minute,” and denied 3 ever being informed that th e records were not complete. 4 {9} The court held that “disclosure is not being provided by [P]laintiffs in a timely 5 fashion,” characterizing the process as a “dis covery war.” The court stated that since 6 Plaintiffs had not provided the complete medical records by the deadline specified in 7 the April 24, 2012 order, discovery sancti ons were appropriate. Initially, it ordered 8 Plaintiffs to provide general medical releas es to both Defendants’ counsel within ten 9 days. After a hearing on the matter, however , it concluded that the situation merited 10 more dramatic sanctions. The case was di smissed with prejudice on January 21, 2014. 11 {10} Following dismissal, Plaintiffs moved for reconsideration, producing 12 documentation of the medical authorization form sent to Dr. Breton. The form 13 requested the release of records dated af ter February 11, 2008. Mr. Duncan was not 14 a patient during the specified period, rend ering the authorization ineffective; Dr. 15 Breton’s assistant noted that no records existed from 2008 because Mr. Duncan had 16 last been seen in 2004. 17 {11} The district court denied the motion for reconsideration, holding that “Plaintiffs 18 failed to conduct discovery ingood faith” and therefore that dismissal with prejudice 197 was appropriate. Plaintiffs appeal from that decision. 1

DISCUSSION 2 A. Standard of Review 3 {12} When a district court imposes sanctions for discovery violations, up to and 4 including dismissal, we apply an abuse of discretion standard in our review. Reed v. 5 Furr’s Supermarkets, Inc. , 2000-NMCA-091, ¶ 10, 129 N.M. 639, 11 P.3d 603. An 6 abuse of discretion occurs “w hen a ruling is clearly contrary to the logical conclusions 7 demanded by the facts and ci rcumstances of the case.” Benz v. Town Ctr. Land, LLC , 8 2013-NMCA-111, ¶ 11, 314 P.3d 688 (internal quotation marks and citation omitted). 9 We defer to the fact finder when ev idence both supports and detracts from the 10 decision because “merely identifying the existence of evidence which may have 11 tended to support a different outcome does not demonstrate an abuse of discretion.” 12 Camino Real Envtl. Ctr., Inc. v. N.M. Dep’t of the Env’t. , 2010-NMCA-057, ¶ 23, 148 13 N.M. 776, 242 P.3d 343. 14 B. Discovery Sanctions Were Justified in This Case 15 {13} Under Rule 1-037(B) NMRA, a districtcourt may impose dismissal as a 16 sanction for violation of discovery orders incases where “the failure to comply is due 17 to willfulness, bad faith, or fault of the disobedient party.” Medina v. Found. Reserve 188 Ins. Co., Inc. , 1994-NMSC-016, ¶ 6, 117 N.M. 163, 870 P.2d 125. “When a party has 1 displayed a willful, bad faith approach to discovery, it is not only proper, but 2 imperative, that severe sanctions be imposedto preserve the inte grity of the judicial 3 process and the due process rights of the other litigants.” United Nuclear Corp. v. 4 Gen. Atomic Co. , 1980-NMSC-094, ¶ 397, 96 N.M. 155, 629 P.2d 231; see also 5 Allred ex rel. Allred v. Board of Regents of the Univ. of N.M. , 1997-NMCA-070, ¶ 34, 6 123 N.M. 545, 943 P.2d 579 (“Although dismissal under Rule 1-037 is an extreme 7 sanction, district courts have a dutyto enforce compliance withrules of discovery, and 8 they should not shirk from imposition of the sanction of dismissal.” (alteration, 9 internal quotation marks, and citation omitte d)). Dismissal is therefore appropriate 10 both when a plaintiff acts with deliberate bad faith and when he simply exhibits “gross 11 indifference to discovery obligations.” Medina , 1994-NMSC-016, ¶ 6; Reed , 2000- 12 NMCA-091, ¶ 24 (“The district court, as the arbiter of discovery, can determine 13 whether a party has abused the discovery process.”). 14 {14} Prior to dismissal of Plaintiffs’ suit, th e district court expressed concern because 15 “the discovery process has b een pretty tortured in this case.” Dr. Breton’s records, 16 among several others, should have been di sclosed under the April 24, 2012 order. The 17 order provided a specific deadline and required that all records be disclosed or releases 18 provided before depositions could proceed. Plai ntiffs failed to comply with the order 199 in three ways: first, they did not obtain the complete records before the specified 1 deadline; second, they did not provide releases to Defendants after being unable to 2 obtain the records themselves; and third, they proceeded with depositions “at some 3 significant expense” to Defendants while properly discoverable information still had 4 not been disclosed, thus meriting discovery sanctions. 5 {15} Defendants argued that Plaintiffs’ failure to produce records like Dr. Breton’s 6 suggested bad faith, because the records cont ained information favorable to their case. 7 Other circumstances also support the district court’s conclusion that Plaintiffs’ 8 conduct reflected “willfulness, bad faith, or fault” in the discovery process. Medina , 9 1994-NMSC-016, ¶ 6. Throughout discovery, Plaintiffs both refused Defendants 10 direct access to the providers via releases and simultaneously culled documents and 11 information they deemed “irrelevant” from wh at they did disclose without maintaining 12 a privilege log. In one example, Plaintiffs refused to provide information regarding 13 an ear, nose, and throat specialist Mr. D uncan saw because it “has nothing to do with 14 this case.” At the same time, they claimed that Mr. Duncan’s “nose bleeds and his 15 treatment for his nose bleeds are [D]efe ndant’s responsibility because he has a 16 coagulopathy” as a result of Defendants’ treatment of his prostate cancer. More than 17 once, Plaintiffs submitted medical bills toDefendants that listed previously unknown 18 providers, including after Plaintiffs had provided affidavits claiming that complete 1910 records had been provided. The district c ourt accordingly found that “Plaintiffs failed 1 to identify key medical providers in the discovery process.” 2 {16} The district court is “not required to impose lesser sancti ons before it imposes 3 the sanction of dismissal.” Id . ¶ 7. It may also base di smissal on a single instance of 4 misconduct. See Beverly v. Conquistadores, Inc. , 1975-NMCA-070, ¶ 15, 88 N.M. 5 119, 537 P.2d 1015 (“The fact that persis tent misconduct provides the basis for 6 dismissal does not mean that one instance of misconduct may not be sufficiently 7 extreme to warrant dismissal.”). In the context of discovery, a false response “is a 8 clandestine violation.” Sandoval v. Martinez , 1989-NMCA-042, ¶ 21, 109 N.M. 5, 9 780 P.2d 1152. Such misconduct is so egregious that evena single instance warrants 10 dismissal. Beverly , 1975-NMCA-070, ¶ 15. 11 {17} In this case, the district court had identified many prior instances of less 12 substantial interference with discovery but c oncluded that Plaintiffs’ failure to provide 13 Dr. Breton’s medical reco rds was itself severe enough to warrant sanctions. The 14 severity of the violation stemmed from Plaintiffs’ insistence to both the district court 15 and Defendants that the records could not be obtained after all good-faith efforts. As 16 the district court noted, “an interrogatory an swer that falsely de nies the existence of 17 discoverable information is not exactly equi valent to no response; it’s worse than no 18 response.” 1911 {18} The district court questioned Plaintiffs specifically as to Dr. Breton’s records, 1 noting that Mr. Duncan had obtained a PSA from that doctor and “must have at least 2 been concerned there were other record s from Dr. Breton,” including prior PSAs. It 3 asked Plaintiffs to provide evidence of their attempts to obtain the records, but 4 Plaintiffs did not produce any authorizati on release forms, letters, or other written 5 requests that had been submitted to Dr. Breton. Plaintiffs offere d only an affidavit of 6 a staff member who stated that she spoke with someone in Dr. Breton’s office on the 7 telephone. In light of Plaintiffs’ inability to offer more substantial evidence, the 8 district court found that Plaintiffs had failed to demonstrate due diligence and a good9 faith effort to conduct discovery properly. 10 {19} Though Plaintiffs later produced more evid ence of their attempts to contact Dr. 11 Breton’s office, that evidence “could have been discovered prior to the dismissal of 12 this case.” It was therefore not “new” for the purposes of reconsideration, which is a 13 sufficient basis for denial. Nance v. L.J. Dolloff Assocs. Inc ., 2006-NMCA-012, ¶ 24, 14 138 N.M. 851, 126 P.3d 1215. The untimely evidence was in fact “consistent with” 15 the district court’s determination that Plaintiffs failed to act in good faith; the 16 authorization Plaintiffs presented cont ained an improper date range, apparently 17 consisted of phone log entries rather than more formal written authorization requests, 18 and had been sent to Dr. Breton’s office se veral months after Mr. Duncan had signed 1912 the release without explanation for the delay. The district court acted appropriately in 1 denying the motion for reconsideration on these grounds. 2 CONCLUSION 3 {20} For the reasons stated above, we concludethat the district court did not abuse 4 its discretion in dismissing Plaintiffs ’ medical malpractice suit for discovery 5 violations. 6 {21} IT IS SO ORDERED. 7

___________________________________ 8 CYNTHIA A. FRY, Judge 9

WE CONCUR: 10

_____________________________ 11 LINDA M. VANZI, Judge 12

_____________________________ 13 J. MILES HANISEE, Judge 14