Excerpted from my Reply Brief, this is my final counter to his Answer on the Second Issue.
II. The Trial Court Did Commit Error in Striking Wife’s Pleadings
Neither party moved for discovery enforcement until almost a year after litigation commenced. Neither party complied until April 2012 (1 R. 178-189[1]). Subsequent to entry of the order compelling her discovery, Wife complied PRIOR TO the date Husband set for hearing on his Motion for Contempt. Nevertheless, Husband did not cancel the hearing.
Only One Warning About Striking Pleadings
During the hearing on May 10, 2012, the trial court issued its first and ONLY warning to Wife that if she did not supply missing items from discovery, her pleadings would be stricken. On April 19, 2012 (1 R. 136-137), the trial court ordered Husband to comply with discovery. If the trial court was frustrated with Wife as Husband alleges (Husband’s Brief, pg. 22), it should have been equally frustrated with Husband for committing an indistinguishable violation.
The Deposition
In the interim, Wife was ordered to appear at deposition (1 R. 195). Wife did not object because there was nothing in the order indicating Husband would be aware of the location at which she would appear. It was ordered that Wife’s counsel would coordinate the location because Wife had not disclosed her address (1 R. 195). On May 18 – just 4 days before the deposition date – Husband filed a notice showing the exact location and time at which Wife was to appear (2 R. 224-225). His notice was public record and, accordingly, Wife realized that Husband would be aware. This created a potentially hazardous situation for Wife. Nothing in the order (1 R. 195) indicates Husband would appear in West Palm Beach as Husband contends (Husband’s Brief, pg. 19). He could have traveled to the location of the deposition and harmed his Wife.
As demonstrated in his own Motion to Strike (2 R. 245), and contrary to Husband’s contentions (Husband’s Brief, pg. 19), Wife’s counsel contacted Husband’s counsel at 4:00 p.m. the day BEFORE the deposition to notify him that Wife would not appear and to request a continuance at another location.
No Evidence of Absolute Refusal to Comply
There is no evidence in the record that Wife “absolute[ly]” refused to comply with discovery court orders (Husband’s Brief, pg. 21). In fact, she complied substantially. Nor did Wife receive “numerous warnings” that her pleadings would be stricken as Husband contends (Husband’s Brief, pg. 24). The court only ever warned Wife ONCE, and that warning related strictly to items undisclosed (4 Tr. 3-4, lines 25 and 1-2).
Striking the Temporary Relief Motion Would Have Been Extreme
Florida appellate courts have found in cases detailed in Wife’s brief (Wife’s Brief, pgs. 29-30), striking pleadings is extreme and should be reserved for the most extreme cases. If a lesser sanction is available, it should be applied instead. Contrary to Husband’s Brief (Husband’s Brief, pg. 21), the lesser sanction of striking Wife’s Motion for Temporary Relief would also have constituted an extreme sanction, depriving her of representation at trial.
Substantial Compliance
Even a peremptory review of the record reveals Wife’s substantial compliance with discovery. Husband’s Request to Produce asks for 84 different items (1 R. 7-14). Husband’s Interrogatories require answers to 121 different questions (1 R. 16-28). En masse, his discovery requests total 205 items. The Order on Husband’s Motion for Contempt lists 19 of the original 205 items (1 R. 196-199). Husband’s subsequent Motion to Strike lists 8 items that Wife allegedly did not produce (2 R. 226-240); the final 2 of which refer to Wife’s disclosed – but redacted – residential lease and payroll checks.
Husband contends Wife “was not in compliance on any level,” (Husband’s Brief, pg. 22). In fact, by the time the Order on Husband’s Motion for contempt was entered, Wife had complied with 186 of the original discovery requests. At the time her pleadings were stricken, Wife had complied with 11 more. In total, Wife complied with 197 of 205 total discovery requests.
[1] With the exception that Wife filed a Financial Affidavit on February 22, 2012.
