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Depew v. Sullivan5/22/2003
to produce was substantially justified or if such an award would be unjust for other reasons.") (citation omitted) (interpreting federal rule 37(d), which is worded almost identically to Utah's rule 37(d)).
Given this standard, we see no abuse of discretion in imposing sanctions against Plaintiff. The trial court's order notes that Plaintiff "admi[tted] that the requested tax returns were in fact in his possession" while the discovery request was pending. Therefore, the trial court could fairly have found that it was not unjust to impose sanctions against him.
However, the trial court's order contains no such findings as to Plaintiff's counsel, and for that reason we vacate the imposition of sanctions against counsel. The closest the order comes to placing any fault on Plaintiff's counsel is its observation, quoting, with our emphasis, from Defendant's response to Plaintiff's objections to Defendant's motion to compel discovery, that "'the [medical] reports [appear to have been] in his or his client's possession [since October, 1996].'" This observation does not necessarily inculpate Plaintiff's counsel. It only recognizes that the fault "appear " to be either on counsel or on Plaintiff himself. An award of expenses against an attorney is unjust when the trial court finds nothing more than a mere possibility that the attorney was to blame for the discovery violation.
A couple of other factors seem to cut against imposing sanctions against Plaintiff's counsel. The information and documents requested were personal and would typically be in Plaintiff's possession, not his counsel's. In fact, as noted, Plaintiff admitted that this was the case as to the requested tax returns. Also, Plaintiff's counsel represented that "everything that had in file had been provided to [Defendant's] counsel at the time of the deposition," which was approximately two and one-half months before the trial court imposed sanctions.
The trial court's order does not discuss any of the above circumstances. Therefore, we vacate the discovery sanctions against Plaintiff's counsel and remand so that the trial court can reassess counsel's personal involvement in the discovery violation. On remand, the trial court should consider whether counsel actually had possession of any of the requested documents and information, counsel's efforts to comply with the discovery request, and counsel's efforts to encourage Plaintiff to comply with (or ignore) the request.
IV. OTHER ISSUES RAISED ON APPEAL
"In light of our decision to remand for a new trial, it is not necessary to discuss [Plaintiff's] other alleged errors. However, since the trial court may be faced with the same issues on remand, we make the following observations." Hornsby v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, 758 P.2d 929, 934 (Utah Ct. App.), cert. denied, 773 P.2d 45 (Utah 1988).
First, as to Plaintiff's motions for a directed verdict and for a new trial, the case of McCloud v. Baum, 569 P.2d 1125 (Utah 1977), which both parties discuss at length in their briefs, appears to be very much on point. Although the facts of that case are slightly different from those of the present case, they are sufficiently similar so as to make the principles of that case controlling. In McCloud, the Utah Supreme Court articulated the law and the standards of review for a directed verdict and for a new trial, see id. at 1127, and it affirmed the denial of the plaintiff's motions for both. See id. at 1126. Contradictory to Plaintiff's argument in the present case, the Court recognized that " n inference of negligence does not arise from the fact of collision
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