When discovery goes so off the rails that a court declares a party “has stalled the progress” of a case, prejudiced its opponent and “wasted judicial resources,” there’s little doubt the sanctions sure to follow will be severe.

And so it was in Airtron, Inc. v. Heinrich, 2024 NCBC 18, where the Business Court “took pains to explain the discovery process and the consequences of noncompliance” to a pro se defendant that still resulted in “utter indifference” to production requests. Id. ¶ 15.

As Judge Conrad noted, “[d]iscovery quickly went off track.” While defendant Heinrich still had counsel, he responded to just one of 28 requests for production and none of the interrogatories. Id. ¶ 3. After counsel withdrew, and Heinrich proceeded on his own, things got worse.

After a Rule 10.9 discovery hearing that resulted in an order to “serve full and complete responses,” defendant made some headway – serving interrogatory responses (albeit incomplete and unsigned) – but still no responses to requests for production. That occasioned a second 10.9 process, and ultimately an invitation from the Court that plaintiff file a motion for appropriate relief. That motion to compel, and for sanctions, led the Court to afford defendant a “second chance” to provide adequate responses while paying nearly $4,000 in attorneys’ fees as a sanction for discovery noncompliance. Id. ¶¶ 4-10.

After only partially supplemented responses, and another (uncontested) motion for sanctions, the story’s end was not a mystery. The Court noted that sanctions “should be proportionate to the gravity of the offense.” Id. ¶ 13 (quoting Kixsports, LLC v. Munn, 2019 WL 4766249, *8 (N.C. Super Ct. Sept. 30, 2019). Severe sanctions such as striking pleadings and entering defaults, the court explained, should only be employed “after considering lesser sanctions and finding them inadequate.” Id. Judge Conrad had little doubt the Court had followed, and exhausted, the proscribed progressive process. As he observed (Id. ¶ 15):

“relatively light” initial sanctions “seem to have had no effect.”

Failing to heed the Court’s clear instructions and warnings about discovery obligations, defendant’s conduct was deemed a “dereliction” with “little reason to believe that [Heinrich] would fulfill his obligations if given yet another chance.” Id. In addition to the prejudice Airtron suffered by waiting over a year for adequate discovery responses, the Court found several “aggravating factors.” The Court highlighted (i) defendant’s failure to obey its order to pay partial attorneys’ fees, (ii) evidence that defendant made “false statements” in the discovery responses he did provide, and (iii) “unrebutted evidence that Heinrich mistreated the court reporter during his deposition.” Id. ¶¶ 15-17. It added up to an order striking defendant’s answer and affirmative defenses, and entering a default judgment as to liability on plaintiff’s claims.

Judge Conrad noted that the Court’s allowance of a “benefit of the doubt” for chances to supplement earlier discovery deficiencies “had more to do with [defendant’s] lack of familiarity with civil litigation than a willful disregard for the judicial process.” But after further failures, even following Court explanation of process and consequences, “[t]he same cannot be said now.” Id. ¶ 15.


  • The Airtron case highlights a relatively uncommon, but still notable, situation in which parties in complex proceedings before the Business Court proceed without counsel. Here, the Court showed considerable patience with layperson discovery failures and even provided guidance to the defendant about the unfamiliar and daunting process he confronted. But the result was not unexpected. Perhaps it’s an appropriate General Assembly inquiry to consider whether a specialty court created to develop a robust body of business case law ought to have legislative funding for a pool of appointed lawyers? The Fourth Circuit has a program for the paid appointment of counsel for pro se civil litigants in the court’s discretion. So does the North Carolina Court of Appeals, although those appointments are unpaid. Either way, such a program could serve litigants and the Bar by producing more merits decisions tested by the adversarial process, and afford additional opportunities to appear before the court where much of the State’s business litigation guideposts are being set.

Brad Risinger is a partner in the Raleigh office of Fox Rothschild LLP.