Over the years, I have heard numerous motions for issue, evidence and terminating sanctions. I found that it is difficult to rule on motions for issue and evidence sanctions if the Separate Statement is not complete. If the Separate Statement does not fully explain what you are asking for and specifically describe the numerous discovery requests and the deficiencies in the responses you received regarding the specific issue or evidence your requesting an order on, the record will not allow me to recommend sanctions beyond monetary sanctions.
I have found that the following format for the Separate Statement that was the most useful for me to rule on these motions should be as follows:
* ISSUE or EVIDENCE SANCTION TO BE DETERMINED.
State exactly what issue or evidence sanction you want the court to grant with specificity. Be sure that the issue or evidence sanction exactly tracks the discovery sought and does not ask for something more than a proper answer to the discovery requested would have provided.
* List each written discovery request sent to and deposition question asked of responding party that supports your request for the issue or evidence sanction.
* Following each request, state the response that was not fully responsive that supports your request for the sanction.
* WHY THE ISSUE or EVIDENCE SANCTION SHOULD BE GRANTED.
Don’t do this for each individual written discovery request and deposition question like you would do for a regular motion to compel further responses. Your goal is to show the cumulative effect of the opposing failure to provide proper discovery responses to support your argument for the issue or evidence sanction.
For the opposition to a issue or evidence sanction motion, the opposing party should add to the Separate Statement stating:
* WHY THE ISSUE or EVIDENCE SANCTION SHOULD NOT BE GRANTED
The opposing party should list every discovery response either it be an interrogatory answer, document production, request for admission or a deposition answer that shows the information was provided in discovery. Even if there wasn’t a response or the response wasn’t complete to the specific discovery device in the Separate Statement, the information may have been provided in response to another discovery device thus defeating the motion. If the information has not previously been provided in discovery, then serve updated verified discovery responses with your opposition. The further discovery response could defeat the motion for issue or evidence sanction.