Discovery Sanctions and the Burnet Factors
The process of discovery, the seeking of facts and the collection of evidence, is essential to trial work. Modern court rules have broadened the scope of pretrial discovery to prevent parties from surprising each other with evidence at trial. The rules give each party the right to send written questions to the other parties, to collect documents and other evidence from them, to take their deposition under oath, and even to seek admissions from them. Additionally, in many jurisdictions the rules also require the parties to identify to the other parties whom they are expecting to call as a witness at trial.
But discovery is not always a smooth process. Sometimes the Court needs to step in as a referee to enforce the rules and to issue orders; and sometimes to issues sanctions against parties for failing to follow the rules or to comply with those orders. The Court “has broad discretion as to the choice of sanctions for violation of a discovery order.” Burnet v. Spokane Amb., 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). Under the civil rules, the sanctions range from the shifting of attorney’s fees to the exclusion of evidence and even to granting default judgment. Magaña v. Hyundai Motor Am., 167 Wn.2d 570, 584, 220 P.3d 191 (2009).
So, what happens when one party deliberately withholds evidence from their opponent and the opponent wants that evidence excluded? In that event, the Court needs to examine the Burnet factors, named after the Washington Supreme Court decision in Burnet v. Spokane Amb. First, the Court must look at is whether the withholding of evidence or other violation of the discovery rules was intentional or willful, or if “other unconscionable conduct” occurred. 131 Wn.2d at 494. If the offending party did act willfully, intentionally, or unconscionably, the Court must then determine whether the party seeking exclusion was substantially prejudiced in their ability to prepare for trial. Jones v. City of Seattle, 179 Wn.2d 322, 338, 314 P.3d 380 (2013). This two-step process, to determine if a party acted wrongly and to determine if that wrongful act actually prejudiced the other party, ensures that the evaluation of the discovery violation is fair. Next, the Court must decide on the remedy to correct the discovery violation.
The exclusion of evidence, or preventing a witness from testifying, is an extreme sanction that Courts should use sparingly. Therefore, the Burnet factors include a third step in the process: before imposing the sanction of excluding evidence, the Court must consider, on the record, whether a less severe sanction could suffice. Peluso v. Barton Auto Dealerships, Inc., 138 Wn. App. 65, 70, 155 P.3d 978 (Div. 3 2007). The lesser sanction must “advance the purposes of discovery and yet compensate the [other party] for the effects of the [offending party’s] discovery failings.” Id. Examples of lesser sanctions are allowing for unilateral extension of discovery past the cutoff date, fee shifting, and limiting the scope of testimony. But “the sanction must not be so minimal, however, that it undermines the purpose of discovery. The sanction should insure that the wrongdoer does not profit from the wrong.” Behr v. Anderson, 18 Wn.App.2d 341, 376, 491 P.3d 189 (Div. 3 2021).