North Carolina Lawyers Weekly had an article on a recent Sanctions Order issued by a South Carolina trial judge against a North Carolina lawyer and his client for engaging in abusive discovery tactics during a wrongful death case.  Discovery abuse including obstruction and delay are rampant in nursing home litigation.  The Court found order that a senior living and healthcare facility operator, Five Star Quality Care Trust Inc., and its Charlotte-based attorney, Gerald Stein II of Hedrick Gardner, turned the discovery process into a game of Go Fish.  She wrote that “defense counsel makes opposing counsel ‘go fish’ until they happen to stumble upon crucial witnesses and critical documents.” She specifically found that Stein and Five Star failed to produce appropriate witnesses, ran afoul of the rules of alternative dispute resolution and withheld a key document.

This court recognizes it bears responsibility for protecting our civil justice system from abuse,” she added, “yet it finds no pleasure in admonishing fellow attorneys.”“Issuing an order of sanctions is a somber task for circuit judges,” Richland County Circuit Judge Tanya Gee wrote in a Jan. 27 order denying reconsideration of her sanctions award.

Gee ordered Stein and Five Star to pay $34,955 to the plaintiff’s attorneys. They represent Patricia Greenburg in a wrongful death suit against Five Star, which operates the The Haven in the Summit senior facility in Columbia, where Greenburg’s mother, Constance Chandler, fell several times causing her death in 2010.

It strains credulity to believe that the Five Star defendants were surprised to learn that the plaintiff sought information pertaining to the timeframe identified in the complaint as the time during which Ms. Chandler had numerous falls and died,” she wrote in her order.

She also scolded Five Star and Stein for failing to hand over during discovery a mock survey that included information that was responsive to at least six of the production requests from Rikard’s firm.  The survey came to light during a deposition. She testified that the survey was prepared the same month that Chandler died and described the document as a “good audit tool of how the community is doing.” The survey included details about the facility’s policies and procedures, staff training, incident reports and fall prevention programs.

Stein argued at the sanctions hearing that he first learned about the survey at the deposition. But before the hearing, he had argued in a memo opposing the motion for sanctions that the survey was not responsive to the discovery requests.

While honest mistakes happen during document production,” Gee wrote, “defense counsel’s written assertion that he had no obligation to produce the mock survey suggests counsel purposely withheld the document, not – as defense counsel later argued – that the document had never been revealed until the deposition.”

It’s rare in South Carolina to have this kind of sanctions order from a state court. But it is necessary and much needed,” he said. “I hope this is an order that will signal what will happen in the future when people play games with the discovery rules.”


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