Sanctions Against Defendant Not Authorized Where Production of Data Disk Not Ordered by Court

Nieshe v. Concrete School Dist., 2005 WL 1580043 (Wash.App. July 5, 2005) (unpublished)

Jennifer Nieshe (“Neishe”) sued the Concrete School District (“District”) under 42 U.S.C. ��1983 for denying her due process by excluding her from a high school graduation ceremony based on a failing grade which was later changed to a passing grade. The superior court sustained a jury verdict in favor of Neishe. The District appealed, and Neishe cross-appealed arguing that the superior court erred in not sanctioning the District for violating discovery rules by failing to produce a computer disk.

Nieshe had requested that the District provide “grading records or documents related to grades or grading.” The District provided a hard copy of her grading report, but did not produce a computer disk containing grade data until the first day of trial. While the trial court found that the disk was within the scope of discovery and not disclosed before trial, it decided not to issue sanctions. It reasoned that the data on the disk could not be retrieved anyway since the program which created the data could not be found.

The appeals court held that Nieshe had not been depived of life, liberty, or property as would be required to prevail under 42 U.S.C. ��1983 and reversed the superior court decision in favor of Nieshe. However, it did not find that the failure to sanction the District for violating discovery rules was an abuse of discretion. Sanctions are authorized under CR 37(b)(2) where there is a failure to comply with a discovery order or respond to a discovery request under CR 33 or CR 34. The District did respond to discovery requests under CR 34, and Nieshe never made any request for additional documents under CR 37(a). Sanctions are not authorized here. Furthermore, the court could not find that Neishe failed to receive any information based on not being provided the disk.