Sanction Escalation

In MGO, LLC v. Accessology Too, LLC, a frustrated judge said:

If I need to order additional production, if you have objections that you are not sure about, I would urge you not to make frivolous or unnecessary objections, because, on the 14th, if it looks like people are still stalling, or trying not to hand over relevant information, I have been known to award attorney’s fees for that kind of behavior. And since we are coming up on the eve of trial, if it looks like you have something that is relevant and clearly within the scope of discovery and you’re hanging it up on some kind of technicality, that Friday is not going to go very well for your client.

While sincere and pointed, that statement didn’t satisfy the prerequisite for death-penalty sanctions of considering lesser sanctions:

[A]n order compelling discovery responses, coupled with an unequivocal warning that noncompliance would result in dismissal, constitutes a lesser sanction that can support a subsequent death-penalty sanction. However, equivocal warnings of future sanctions do not constitute lesser sanctions.  The trial judge’s remarks in this case were equivocal warnings about  future sanctions and did not specifically mention the possibility of death-penalty sanctions at all.

No. 05-23-00100-CV (July 17, 2024) (mem. op.) (citations and emphasis omitted).