Sanctions for Filing a Motion to Compel in Arizona

Tue 6th Dec, 2016 Arizona Divorce Laws

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 The Arizona Court of Appeals considered these issues in the unpublished case of Davis v. Desert Highlands Association.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. The wife’s attorney later notified the Association that the records needed to be provided by April 11, 2014.

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).

U.S. News and World Report Votes Hildebrand Law, PC Best Law Firms for 2020 2021 2022 2023

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 is provided by April 8, 2014 (even though the Association had already agreed to provide the documentation prior to the hearing on April 11, 2014). The 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.

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 is 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 an 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.

It was her own failure to set the date accordingly that left her without time to prepare. Wife’s attorney 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.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

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.

If you have questions about sanctions for compelling late discovery in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have decades of combined experience successfully representing clients in divorce and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona divorce or family law case around today.

Frequently Asked Questions and Answers

Can you be sanctioned for filing a motion to compel discovery in Arizona?

Yes. An Arizona court may award attorney’s fees or other sanctions when a motion to compel is unreasonable, premature, improperly served, or filed without satisfying applicable procedural requirements. In a family-law case, the circumstances surrounding the discovery dispute and the conduct of the parties or attorneys can affect whether sanctions are awarded.

What are sanctions for a motion to compel in Arizona?

Sanctions for a motion to compel in Arizona can include an award of attorney’s fees and other court-ordered remedies. The purpose may be to address unreasonable conduct or expenses caused by an improper discovery motion. The specific sanction depends on the circumstances of the case and the applicable Arizona family law rules.

Can an Arizona divorce attorney be ordered to pay attorney’s fees for improper discovery?

Potentially. In an Arizona family-law case, an attorney’s conduct in pursuing discovery can result in an award of attorney’s fees when the attorney acts unreasonably or fails to comply with applicable procedural requirements. The circumstances of the individual case determine whether fees or other sanctions are appropriate.

What happens if a motion to compel discovery is filed too early in Arizona?

A motion to compel filed before the discovery deadline has expired may be denied as premature. Filing too early can also expose the requesting party to a request for attorney’s fees or other sanctions if the court determines that the motion was unreasonable under the circumstances.

Do you have to try to resolve a discovery dispute before filing a motion to compel in Arizona?

In Arizona family-law proceedings, applicable rules require an attorney to make a good-faith effort to resolve a discovery dispute before filing a motion to compel. Failing to provide the required certification or failing to make the necessary good faith effort can result in the motion being denied and may result in an award of sanctions.

Does a motion to compel have to be served on the other party in Arizona?

Yes, applicable Arizona family law rules require proper service of motions on the affected party. Failure to serve a motion to compel can result in the court denying the motion and may have consequences for the party who filed it.

Can a court award attorney’s fees when a discovery motion causes unnecessary expense?

Yes. Arizona courts can consider whether a party’s or attorney’s actions created unnecessary expense or imposed an undue burden on another party or a non-party.

Can a non-party receive attorney’s fees after responding to a subpoena in Arizona?

A non-party may seek protection from undue burden or expense associated with a subpoena. In the Davis case, the employer was a non-party, and the courts considered the burden and expense imposed on it when addressing attorney’s fees.

What is a motion to compel in an Arizona divorce case?

A motion to compel is a request asking the court to order another party or, in appropriate circumstances, a person subject to a discovery obligation to provide information or documents that have not been produced. The requesting party must comply with applicable Arizona procedural requirements before seeking court intervention.

What should you do before filing a motion to compel in an Arizona divorce?

Before filing a motion to compel, review the applicable discovery deadline and procedural requirements, communicate with the opposing party about the disputed discovery, and make the required good-faith effort to resolve the issue when the applicable rules require it. Proper service and any required certification of compliance with the good faith effort requirement should also be addressed.

What can happen if an attorney files a motion to compel even though the other side is cooperating?

The court may deny the motion if court intervention is unnecessary or the motion is premature. If the filing creates unnecessary expense or is otherwise unreasonable, the court may also consider awarding attorney’s fees or other sanctions.

Why is timing important when filing a motion to compel in Arizona?

Timing matters because a party generally should not ask the court to compel discovery before the responding party has had the required opportunity to comply. Filing prematurely can undermine the motion and may increase the risk of an attorney’s fee award when the filing causes unnecessary expense.

Does a court automatically impose sanctions for a failed motion to compel?

No. A failed motion to compel does not automatically mean that sanctions will be imposed. Whether attorney’s fees or another sanction is appropriate depends on the applicable rules and the facts surrounding the discovery dispute, including whether the motion was unreasonable, premature, or procedurally defective.

Why should you be careful when filing a motion to compel in an Arizona divorce case?

A motion to compel asks the court to intervene in a discovery dispute. If it is filed prematurely or without following required procedures, the court may deny the request and potentially award attorney’s fees. Careful attention to discovery deadlines, service requirements, and efforts to resolve the dispute are, therefore, important.

Categories