Get Full Government Meeting Transcripts, Videos, & Alerts Forever!
Get email alerts on the Discovery topic
No spam. Unsubscribe anytime.
Plaintiff tells court DCYF's discovery failures warrant sanctions
Summary
Plaintiff counsel told the Other Court that DCYF failed to produce key State Patrol photographs (accessed via a portal link) and that a certification accompanying supplemental responses was false, urging sanctions under CR 26(g) to educate, deter and compensate.
Plaintiff counsel Drew Lombardi told the Other Court that DCYF's handling of discovery — specifically the failure to produce key photographs available through a State Patrol portal — was sanctionable under CR 26(g) and retraumatized the alleged victim.
"They reviewed those records, and they were key records. They were photographs that proved AK's testimony," Lombardi said, arguing defense counsel had notice of the records in CP 934 and yet did not download or produce them to the plaintiffs.
Lombardi urged the court to affirm the trial court's finding of sanctionable discovery misconduct and to remand for sanctions that fit the purposes of education, deterrence, punishment and compensation. He argued the record shows the State had access to the first installment of records, reviewed them, and then failed to produce a later, related installment.
Defense counsel Joshua Share responded that CR 26(g) concerns the certification about the specific supplements provided and disputed that the certification at issue was false; he argued the record does not show deliberate concealment and emphasized differences from cases where parties intentionally withheld responsive documents.
The panel questioned whether possessing a link to records in a third‑party portal equates to possession, custody or control under discovery rules, and whether a party's failure to click a link means they did not have the documents. Counsel and the court discussed prior discovery decisions and the practical effects of web‑based exchanges in modern litigation.
On the certification issue, the panel pressed whether supplementing responses later constitutes a recertification of earlier answers; counsel disagreed about the interpretation but both sides acknowledged that the certification language and the details of what was supplemented are central to whether CR 26(g) was violated.
At the end of argument both sides pressed the court to adopt their reading of the record; the defense asked the court to reverse, and the plaintiff asked the court to affirm and remand for sanctions under the correct legal standard.
