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Filing a Motion to Compel Discovery That Was Untimely Issued in a Divorce May Result in Sanctions

Posted on : December 6, 2016, By:  Christopher Hildebrand
Filing a Motion to Compel Discovery That Was Ultimately Issued in a Divorce May Result in Sanctions

Filing a Motion to Compel Discovery That Was Untimely Issued in a Divorce May Result in Sanctions

In Arizona, the court can award attorney’s fees to one party in a proceeding in the trial court’s discretion. Factors typically considered include the reasonable nature of the positions taken by both parties, the financial resources available to both parties, the length of the proceedings, the cause of the proceedings, any purposeful delays during the proceedings, and any applicable findings of the court. The Arizona Court of Appeals considered these issues in the unpublished case of Davis v. Desert Highlands Association.

A Brief Summary of the Case: Davis v. Desert Highlands Association

In preparation for a hearing on legal decision making and parenting time, Davis’ (Wife) attorney filed a subpoena requiring Father’s employer, Desert Highlands Association, to provide documentation including personnel records, discipline records, financial records, performance reviews, security reports/videos, memos, and correspondence for the time during Father’s employment.

The subpoena was issued on March 24, 2014 and required that the records be produced by April 21, 2014. Wife’s attorney later notified the Association that the records needed to be provided by April 11, 2014.
Filing a Motion to Compel Discovery That Was Ultimately Issued in a Divorce May Result in Sanctions
The Association agreed to provide the documentation prior to the deadline stated in the subpoena, but objected to part of the request (i.e. going through all the requested video footage would take 700 hours and on top of that someone would need to comb through every email ever sent by Father during his time with the company).

Wife’s attorney contacted the Association on April 3, 2014 in the midst of negotiations regarding the documentation to advise the Association that she needed the documentation provided immediately and that she was going to file an expedited motion to enforce the subpoena, so she didn’t run out of time to prepare for the hearing.

Wife’s attorney filed the Expedited Motion for the Court to Order Disclosure of Petitioner’s Employee File that same day with the request that documentation be provided by April 8, 2014 (even though the Association had already agreed to provide the documentation prior to the hearing on April 11, 2014). Mother’s attorney did not serve the motion on the Association. They only learned of it on April 7, 2014 when Father’s attorney mentioned it.

When Wife’s counsel refused to withdraw the motion, the Association filed a response along with a request for sanctions and fees. The court denied Wife’s attorney’s motion because the Association had not been served with the motion, the motion did not contain the required language certifying good faith efforts had been made to reach a resolution of the dispute, and the motion was premature in relation to the deadline indicated in the subpoena. Davis was ordered to pay $3,000 in attorney’s fees. She appealed.

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Davis v. Desert Highlands Association: On Appeal

On appeal, Wife’s divorce attorney defended her actions in the $3,000 suit. She contends her subpoena, motion and other relevant actions were not unreasonable and did not exert undue burden or expense on the Association. She requested that the award be decreased to $73 to reflect the actual time the Association spent complying with the subpoena.

The Court of Appeals of Arizona, after reviewing the record, found that Wife’s attorney’s actions were unreasonable and did impose undue expense on the Association. Wife’s attorney should have known the hearing date prior to sending out the subpoena and should have set the deadline accordingly.
Filing a Motion to Compel Discovery That Was Ultimately Issued in a Divorce May Result in Sanctions
It was her own failure to set the date accordingly that left her without time to prepare. Wife’s filed the motion after the Association agreed to provide the majority of the documentation early. She also filed the motion without the required Ariz. R. Fam. L. P. 65(A)(2)(c) certification verifying that a good faith attempt was made to resolve the discovery dispute with the Association. She also failed to serve the motion on the Association.

Not only did Wife’s attorney;s actions appear unreasonable, but due to the high level of cooperation she was receiving from the Association, it would appear that no motion should have ever been filed. As a non-party, the court should be hyper vigilant to discourage counsel from imposing undue burden or expense with compliance required for legal proceedings.

In Conclusion: The Arizona Court of Appeals Ruling in Davis v. Desert Highlands Association

The Arizona Court of Appeals affirmed the trial court’s award of attorney’s fees, awarded attorney’s fees to the Association on appeal and forwarded their decision to the State Bar of Arizona for disciplinary investigation.

Hildeband Law, PC.


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