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When may a trial judge dismiss a lawsuit for a failure to provide court-ordered discovery to the opposing side? This question is important because the discovery process is a major portion of most litigated cases. And, it is sometimes difficult to provide complete and timely responses to requests for documents and information.

A Florida Appellate Court has just held that it was error to dismiss a complaint with prejudice as a sanction for failure to comply with court-ordered discovery without considering all of the factors set forth by the Florida Supreme Court in the case of Kozel v. Ostendorf.

Excerpts from the Michalak opinion show how carefully a judge must review the discovery violations before deciding on the correct sanction or penalty.

RICHARD MICHALAK and MINDY MICHALAK, his wife, Appellants, v. RYDER TRUCK RENTAL, INC., a Florida corporation, and KENNETH EUGENE PHILLIPS, individually, Appellees. 4th District. Case No. 4D04-2202. March 29, 2006. 31 Fla. L. Weekly D931a

Phillips…filed a motion to strike appellants’ pleadings and a motion to show cause. The court granted the motion, finding that appellants’ failure to comply with court-ordered discovery was done “in a deliberate, willful, and contumacious manner” and that Phillips was prejudiced in his preparation for trial.

A trial judge has a broad range of sanctions at his disposal to enforce the parties’ compliance with court orders.

It is uniformly held that dismissal is a drastic remedy which courts should employ only in extreme situations and only when the violation requires such a sanction.

In Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), the plaintiff suffered dismissal of her action as a result of the amended complaint being filed five months after the agreed deadline. The supreme court held that dismissal in that situation was too harsh a penalty in light of the fact that the client would be punished for the attorney’s transgression.

“…a fine, public reprimand, or contempt order may often be the appropriate sanction to impose on an attorney in those situations where the attorney, and not the client, is responsible for the error. To assist the trial court in determining whether dismissal with prejudice is warranted, we have adopted the following set of factors set forth in large part by Judge Altenbernd: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.”

Based on the facts in this case and the record before us, we reverse and remand for a hearing at which the trial court shall consider the Kozel factors.

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