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Late or Untimely Discovery Responses in a Child Relocation Act Case: The Lawyer Escapes Sanctions (For Now)

Posted on February 16, 2022 by Will Reingold

Civil lawsuits can take a long time.  After the complaint and other initial pleadings are filed, the next phase of the case will typically turn to what is referred to as “discovery.”  Discovery is the mechanism the parties and their attorneys request and exchange information.  For various reasons, it is often a slow and tedious process.  Rules for taking depositions, interrogatories, and other methods of obtaining information relevant to the case at hand must be followed through the discovery process.  Of note, parties who violate these rules could face sanctions for “failure to make discovery” under Civil Rule 37.

The Washington Court of Appeals recently decided a case in which a lawyer was at fault for failing to comply with discovery rules yet did not suffer any consequences.  In the case of Short v. Schrader, the parties had divorced and the mother, Schrader, was named the primary parent of their young child.  About a year-and-a-half later, Schrader wanted to relocate with their child to Texas.  Under Washington law, the non-relocating parent has the right to object to the other parent’s desired relocation.  The father in this case, Short, filed an objection to Schrader’s decision to move the child to Texas.

Short took Schrader’s deposition to learn more about why she wanted to move so far away.  Later, seeking more information, Short sent Schrader requests for admission pursuant to Civil Rule 36(a).  Although Schrader provided her attorney with draft responses within four days, “[h]er counsel failed to submit answers until the day of trial in July, well after the 30-day deadline provided in CR 36(a).”  On the eve of trial, Short argued to the judge that in accordance with Civil Rule 36(a), the late response from Schrader resulted in all of the requests for admission being deemed admitted.

In response, Schrader’s attorney took responsibility for the late responses.  The attorney explained to the judge that her mother was “seriously ill and died around the time” in question, Covid-19 was fraying her practice due to employees being out, and her new assistant was being trained at the time.  She also noted that many of the requests were already answered in Schrader’s deposition.  Concluding that it did not have the authority to accept Schrader’s late answers, the Court ultimately admitted some of the requests for admission, and importantly the ones that “related to the allegation Schrader scratched Short’s truck and the lack of financial benefit that Schrader and [the child] would enjoy if they moved to Texas.”

The Court of Appeals deemed the trial court’s decision was in error and reversed the decision. In doing so, the Court of Appeals helped clarify a procedural misstep made by the trial judge.  The Court of Appeals held that “[n]othing in CR 36(a) indicates that the trial court must receive a formal motion before extending the time limit.”  The informal argument provided by Schrader’s attorney was sufficient under the circumstances.  This aligned with Washington’s public policy to resolve cases involving the relocation of children “based on the merits of the individual cases before them.”  The case was remanded back to the trial court.  However, the Court of Appeals closed its decision with an acknowledgment (and perhaps warning) that “lesser sanctions than deeming the requests admitted may be an alternative” for late discovery responses. Time will tell if any sanctions come to be, but regardless, the case serves as a cautionary tale.

If you are in need of assistance in your civil litigation, or family law matter, the attorneys at Lasher are here to help.