                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2003-CA-00234-SCT

COOPER TIRE & RUBBER COMPANY

v.

JOHNNIE McGILL AND DOROTHY PAIGE,
INDIVIDUALLY, ON BEHALF OF THE ESTATE OF
DONALD PAIGE, AND THE WRONGFUL DEATH
BENEFICIARIES OF DONALD PAIGE

DATE OF JUDGMENT:                          12/20/2002
TRIAL JUDGE:                               HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   SAM E. SCOTT
                                           DAVID DIAL
ATTORNEYS FOR APPELLEE:                    JOHN LEE DAVIDSON
                                           JUDSON MORGAN LEE
                                           JOHN D. GIDDENS
NATURE OF THE CASE:                        CIVIL - WRONGFUL DEATH
DISPOSITION:                               REVERSED AND REMANDED - 07/22/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE WALLER AND COBB, P.JJ., AND GRAVES, J.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    Plaintiffs John McGill and Dorothy Paige, individually, on behalf of the Estate of

Donald Paige, and the wrongful death beneficiaries of Donald Paige filed a complaint against

several parties including Cooper Tire & Rubber Company. As the trial date approached, issues

arose regarding discovery and the failure by Cooper Tire to produce certain documents. This

appeal follows from a contentious discovery process between plaintiffs and Cooper Tire. The
trial court ordered that certain documents be produced and issued several immediate and

prospective sanctions if Cooper Tire failed to meet specific deadlines, which it did not.            On

the morning prior to a hearing regarding Cooper Tire’s failure, Cooper Tire and plaintiffs

reached a settlement.      Following this, the trial court reconsidered the sanctions and dismissed

all sanctions save a $10,000 fine for a one-day violation of the court’s order.

                                                  FACTS

¶2.     The issue before this Court stems from Cooper Tire’s failure to produce several

documents that were initially requested by plaintiffs and later ordered by trial court.1

¶3.     On December 20, 2001, on Cooper Tire’s request, a protective order was entered.

Subsequently, plaintiffs requested the production of documents related to Tuckier, et. al. v.

Cooper Tire & Rubber Co., et. al., Cause No. CV-97-64-C(P1).                       Cooper Tire objected,

contending that the documents were not relevant, the request was overbroad, the cases were

distinguishable from one another and access to the documents was limited by a protective

order entered by the Circuit Court of Panola County. 2




        1
            Cooper Tire devotes much of its brief on appeal discussing the validity of the request
and order. However, because the only relevant fact on appeal is Cooper Tire’s failure to obey
a court order, arguments regarding the validity of an order do not provide a defense for the
failure to obey it.
        2
           In a letter to counsel for plaintiffs dated March 22, 2002, counsel for Cooper Tire
provided a list of all documents and things produced in the Tuckier case. Cooper Tire
requested that plaintiffs specifically identify the documents they desire and briefly explain
their relevancy. Thereafter, counsel for Cooper Tire would determine their relevancy and seek
authority from Cooper Tire to produce them.

                                                      2
¶4.     On July 19, 2002, plaintiffs moved for the trial court to compel Cooper Tire to produce

documents recently produced in Brownlee v. Cooper Tire & Rubber Co. and Whitaker v.

Cooper Tire & Rubber Co. (hereinafter “Brownlee/Whitaker”), which were similar suits

pending in the federal district court for the Eastern District of Arkansas.          Plaintiffs contended

that the issues in Brownlee/Whitaker cases were similar to the instant case and that the

documents in question were therefore relevant. Cooper Tire argued the motion was flawed in

that the documents were never requested as required by M.R.C.P. 34 and that plaintiffs failed

to submit a good faith certificate as required by URCCC 4.04(c). Further, it argued that the

motion was untimely based on the fact that it was filed after the discovery deadline.3

¶5.     On July 24, 2002, the trial court heard arguments on the motion to compel. 4 Following

this hearing, both parties filed several memoranda and documents supporting their respective

positions.     Plaintiffs filed a second motion to compel, which presented reasons why they

sought to compel production and which had attached an order from a South Carolina Court in

Middleton v. Cooper Tire & Rubber Co., No. 99-CP-25-214.                       In an order entered in

Middleton, the trial court recognized that Cooper Tire had electronically stored much of the

information regarding tires returned for tread separation.


        3
            A scheduling order was entered providing June 3, 2002, as the close of discovery and
setting June 17, 2002 as the trial date. At the requests of all defendants, the trial date was
changed to August 12, 2002. Plaintiffs claimed that during a hearing held on June 4, 2002, the
trial court extended discovery until two weeks before trial date (i.e., July 26, 2002). There is
no transcript for this hearing, and Cooper Tire never asked the trial court for clarification of
that claim.
        4
            There is no transcript for this hearing.

                                                       3
¶6.     On July 30, 2002, the trial court issued an opinion and order on the motion that was

highly critical of Cooper Tire’s conduct regarding the production of documents and discovery

practices.   The trial court cited Cooper Tire for, inter alia, discovery abuses and for making

material misrepresentations to the court regarding the production of documents.5

Noting the protective order previously entered, the trial court ordered that Cooper Tire

produce all depositions and testimony of experts and employees from the Brownlee/Whitaker

case.   Such documents were to be provided on diskettes formatted to Microsoft Word 97,

unless plaintiffs requested hard copies.     As to these documents, the trial court ordered that

Cooper Tire would be sanctioned $10,000 for every day after July 31, 2002, that it failed to

satisfy the order.

¶7.     Cooper Tire was ordered to allow the inspection and copying of the Talalai documents

by counsel for plaintiffs.6 The inspection was to begin no later than August 2, 2002, and the

trial court ruled that Cooper Tire would be sanctioned $10,000 for every day after this date if

plaintiffs were not provided access. Cooper Tire was ordered to pay costs associated with the

inspection. The court stressed that if it was determined to be Cooper Tire’s fault, further


        5
           Both during the July 24 hearing and in documents filed before the court, Cooper Tire
incorrectly represented that it had provided many of the documents that plaintiffs had
requested. Because no such data had been produced, the trial court sanctioned counsel for
Cooper Tire, the law firm McGlinchey Stafford, PLLC, and ruled that the amount of the
sanction would be determined at a later date.
        6
          These documents are stored in the Talalai repository, which is located in Cleveland,
Ohio. The repository houses hundreds of thousands of documents originating from a class
action lawsuit involving every make of steel belted radial tire domestically produced by
Cooper Tire over the past 15 years.

                                                   4
sanctions would be considered in the event that all inspection, production, copying and other

access were not completed by August 7, 2002.

¶8.    Additional sanctions were based generally on Cooper Tire’s conduct during discovery

and misrepresentations to the trial court. The trial court ordered that Cooper Tire be prepared

to show cause at a future hearing regarding why it should not be further sanctioned. Finally,

the trial court denied the motion for pro hac vice submitted by attorney Daniel T. Plunkett and

ordered that Cooper Tire be sanctioned, for an amount to be determined later, for its

systematic failure to make proper discovery and discovery abuses.7

¶9.    Despite the order, neither production requirements were satisfied.          None of the

Brownlee/Whitaker documents were provided.             As to access to the Talalai repository,

Cooper Tire denied access to plaintiffs’ counsel and consultants. On August 2, 2002, after the

plaintiffs’ representatives traveled to the facility located in Finley, Ohio, Cooper Tire refused

access citing the lack of an established protocol for the inspection. On this same day, in its

first response to the trial court’s order, Cooper Tire filed a motion to reconsider. The motion

provided several reasons supporting Cooper Tire’s position and included its letter to the trial

judge dated July 29, 2002, seeking to correct the misrepresentation that was the subject of the

memorandum opinion. Plaintiffs filed a motion requesting that Cooper Tire be held in

contempt.




       7
           The trial court ruled that Plunkett made the misrepresentations during the July 24,
2003, hearing.

                                                  5
¶10.      On August 8, 2002, the trial court heard arguments regarding Cooper Tire’s motion to

reconsider and/or vacate its order. At that time, the parties notified the court that a settlement

had been reached on all claims and defenses, including those of facts and law earlier that

morning.     Nevertheless, the trial court heard the arguments.        As to the Brownlee/Whitaker

documents, Cooper Tire contended it was seeking to satisfy the order but that it was unable to

produce the documents in the format mandated. Likewise, Cooper Tire contended that it faced

a conflict between the protective orders issued in this case and by the Arkansas federal court

in Brownlee/Whitaker which retained jurisdiction over the documents.                       Cooper Tire

represented that it filed in the federal court a request for guidance.       When questioned by the

trial court, Cooper Tire could not provide a reason why it failed to contact the trial court or

request an emergency hearing or telephonic conference.

¶11.      As to the failure to grant access to the Talalai document repository, Cooper Tire

contended that there were numerous protective orders in place and that it would not allow

plaintiffs to inspect the documents until there was an agreement between them regarding

certain protocol. As to why it failed to contact either the trial court or counsel for plaintiffs

regarding its inability to comply with the order, Cooper Tire again gave no explanation.

¶12.      Though Cooper Tire failed to comply with its order, the trial court amended its earlier

ruling.    Holding that many of the issues were now moot following the announcement of a

settlement, save one, the court vacated all the sanctions ordered.            Cooper Tire was fined




                                                    6
$10,000. As will be discussed further, the parties dispute the basis for the fine. The trial court

stated that it would not consider holding Cooper Tire in contempt.8

¶13.    Cooper Tire cites numerous issues, which are combined now on appeal.

                                               ANALYSIS

        I.       What Was the Basis for the Sanctions?

¶14.    Though sanctions were ordered in the July 30, 2002 opinion, the only sanctions

imposed were those ordered during the August 8, 2002 hearing.9             Thus, our analysis focuses

on the sanctions actually ordered.

¶15.    In the initial order (i.e., the July 30 order), the trial court cited M.R.C.P. 37(e) for its

authority to sanction Cooper Tire. To be certain as to the trial court’s authority to sanction,

we consider the basis for sanctions.

¶16.    The July 30 order set forth both immediate and prospective sanctions for discovery

violations.    However, all immediate sanctions were dismissed, and the order was modified

following     the August 8, 2002, hearing.      The parties disagree as to the basis supporting the

sanctions. On the one hand, Cooper Tire argues that sole reason for the fine was its failure to

comply with the July 30 order.         While on the other, plaintiffs argue that it was the failure of

Cooper Tire to contact the trial court prior to the August 2 deadline to inform it that it could

        8
            As for civil contempt, the trial court stated that such would require incarcerating
someone and that this issue was moot in light to the settlement. As for criminal contempt, the
court accepted Cooper Tire’s explanation of its efforts leading to the filing of the motion to
reconsider and thus, stated that it would not even consider such.
        9
           Likewise, the final order of dismissal entered in December of 2002 expressly vacates
most of the July 30, 2002, order.

                                                    7
not satisfy the deadline for producing Brownlee/Whitaker documents.10              This Court agrees

with explanation advanced by Cooper Tire in that the sanction imposed was based on its failure

to produce the Brownlee/Whitaker documents by the end of the day on July 31, 2002. This

finding is understandable after considering why the trial court inquired into Cooper Tire’s

failure to contact it.

¶17.     A review of the transcript reveals that the explanation set forth by plaintiffs has some

support. As an obstacle to complying with the deadline, Cooper Tire claimed that its obligation

under trial court’s order required more time and that the order created issues with orders

entered by courts in other jurisdictions. Several times the trial court admonished Cooper Tire

for its failure to notify the trial court of its inability to meet the deadline.   Further supportive

of plaintiffs’ argument is the fact that a strict application of the July 30 order would have

resulted in a more significant fine.        Nevertheless, we find that the admonishments were in

response to the defense that Cooper Tire was seeking in good faith to comply with the order

and that despite its diligence it was unable to do so.

¶18.     With every description of Cooper Tire’s good faith efforts, the trial court inquired as

why Cooper Tire failed to contact it or plaintiffs. Concerning the fine, the trial court’s desire

not to be oppressive serves as a reasonable explanation for why the fine was substantially less

that what could have been imposed.           The trial court acknowledged that Cooper Tire filed a



         10
        Actually, plaintiffs argue this position in the beginning of its brief, but later state that
the “source of that sanction lies with Cooper Tire’s failure to produce the Whitaker
documents.”

                                                     8
motion to reconsider the July 30 order, but noted that this was not done until August 2, 2002,

two days after the deadline had passed.        Crediting the filing of the motion to reconsider, the

trial judge sanctioned Cooper Tire for the day of August 1, 2002.

         II.     To What Extent          May    Courts    Impose    Fines   for   Discovery
                 Violations?

¶19.     Cooper Tire argues that because M.R.C.P. 37 does not authorize punitive sanctions, the

July 30, 2002, order was beyond the authority of the trial court and was therefore an abuse of

discretion.    Relying on Illinois Central Railroad Co. v. Winters, 815 So.2d 1168 (Miss.

2002), Cooper Tire contends that the trial court’s holding was actually a finding of criminal

contempt, which requires certain procedural and substantive protections that were not provides.

¶20.     There are two sources of authority for imposing sanctions for discovery violations:

M.R.C.P. 37 and the court’s inherent power to protect the integrity of their processes.11

M.R.C.P. 37 provides broad discretion in determining sanctions for discovery violations.        See

M.R.C.P. 37 cmt. Under Rule 37 and their inherent power, courts may impose purely punitive

fines.   To do so, however, courts must first hold the offending party in contempt. This gives

rise to certain procedural safeguards.

¶21.     A trial court is authorized to sanction for violations of its orders concerning discovery

by M.R.C.P. 37, which provides in pertinent part:


         11
           Inherent power to insure the orderly administration of proceedings is discussed in
Wyssbrod v. Wittjen,798 So.2d 352 (Miss. 2001) (Where there is no specific authority for
imposing sanctions, courts have an inherent power to protect the integrity of their processes,
and may impose sanctions in order to do so. Id. (citing Ladner v. Ladner, 436 So.2d 1366,
1370 (Miss. 1983)).

                                                    9
 (b) Failure to Comply With Order.

      (2) Sanctions by Court in Which Action Is Pending. If a party or an
      officer, director, or managing agent of a party or a person designated
      under Rules 30(b)(6) or 31(a) to testify in behalf of a party fails to obey
      an order to provide or permit discovery, including an order made
      under subsection (a) of this rule, the court in which the action is
      pending may make such orders in regard to the failure as are just,
      and among others the following:
              (A) an order that the matters regarding which the order was made
              or any other designated facts shall be taken to be established for
              the purposes of the action in accordance with the claim of the
              party obtaining the order;
              (B) an order refusing to allow the disobedient party to support or
              oppose designated claims or defenses, or prohibiting him from
              introducing designated matters in evidence;
              (C) an order striking out pleadings or parts thereof, or staying
              further proceedings until the order is obeyed, or dismissing the
              action or proceeding or any part thereof, or rendering a judgment
              by default against the disobedient party;
                (D) in lieu of any of the foregoing orders or in addition thereto,
              an order treating as a contempt of court the failure to obey any
              orders.
              In lieu of any of the foregoing orders or in addition, thereto, the
      court shall require the party failing to obey the order or the attorney
      advising him or both to pay the reasonable expenses, including attorney's
      fees, caused by the failure, unless the court finds that the failure was
      substantially justified or that other circumstances make an award of
      expenses unjust.

(e)   Additional Sanctions. In addition to the application of those
      sanctions, specified in Rule 26(d) and other provisions of this rule, the
      court may impose upon any party or counsel such sanctions as may be
      just, including the payment of reasonable expenses and attorneys'
      fees, if any party or counsel (i) fails without good cause to cooperate
      in the framing of an appropriate discovery plan by agreement under
      Rule 26(c), or (ii) otherwise abuses the discovery process in seeking,
      making or resisting discovery.




                                      10
M.R.C.P. 37 (emphasis added).12

¶22.    Relying on Illinois Central Railroad Co. v. Winters, 815 So.2d 1168 (Miss. 2002),

(appeal following remand, Illinois Central Railroad Co. v. Winters, 863 So.2d 955 (Miss.

2004), Cooper Tire contends punitive fines are not available under Rule 37.                    In Winters,

Illinois Central appealed after the trial court held it in contempt and imposed sanctions

following its failure to produce several corporate officers to be deposed. Winters, 815 So.2d

at 1170. The issues arose when, a week prior to the close of discovery, the plaintiffs filed both

a notice to depose the several officers and a motion to extend discovery. Id. at 1171-72. In

response, Illinois Central filed a motion for a protective order and a motion opposed to

extending the discovery deadline.         After a conference call,           the discovery deadline was

extended. Id. at 1171.       Several days later, without a hearing on the matter, the request for

protective order was denied, and the trial court ordered that the depositions go forward as

noticed.     Id.   Despite a warning that the executives would not be available, counsel for

plaintiffs traveled to Chicago for the depositions.       Id.      Shortly afterwards, Illinois Central filed

a motion for reconsideration of the denial of the protective order.               A few days later, the

plaintiffs filed a motion to compel discovery and for sanctions.

¶23.    The trial court heard arguments on the motions to reconsider and compel. Id.                Holding

Illinois Central in contempt for disobeying its earlier order, the trial court imposed sanctions




        12
            For further analysis and comment on M.R.C.P. 37, see Jeffery Jackson, Mississippi
Civil Procedure § 10:1-:14 (2003).

                                                    11
that included the assessment of attorney’s fees and expense related to the depositions the

executives failed to attend.         Id. The court also granted the motion to compel and ordered

Illinois Central to pay all costs associated with the rescheduled depositions. Id. The fees and

expenses approved by the trial court totaled over $47,000 and was awarded directly to the law

firms representing the plaintiffs.

¶24.    Relevant to the instant case, this Court discussed the sanctions under sections (b)(1)

and (d) of Rule 37.       This Court considered whether the contempt finding was civil or criminal

and the severity of sanctions that may be imposed under M.R.C.P. 37. Id. at 1179-82. The

Court stated that “[p]ursuant to Rule 37, [the] failure to obey a court order involving discovery

is contempt, and the court is authorized to impose sanctions.” Id. at 1179.        Determining that

the contempt holding was one for civil contempt, this Court stated “that a trial court can not

tolerate the willful defiance of its orders, even if those orders are later found to be an abuse

of discretion.” Id. at 1181. Nevertheless, this Court held that under M.R.C.P. 37 the sanctions

imposed could only be compensatory and therefore were limited to those expenses that were

a direct result of the failure to attend the depositions. Id. at 1181-82. Though it did remand

for a determination as to which costs were directly attributable to Illinois Central’s failure, this

Court states that the rescheduled depositions were an expense that the plaintiffs would have

incurred anyway. Id. at 1181.

¶25.    At first blush, applying the holding from Winters to the instant case would require that

we hold the trial court was without authority to fine Cooper Tire.       However, upon a closer



                                                   12
examination we find Winters is distinguishable because it did not discuss a trial court’s broad

authority pursuant to Rule 37(e) to sanction a party for discovery violations.    Winters is also

problematic because its reliance on a discussion of Fed. R. Civ. P. 37 set forth by the Fifth

Circuit in Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 516 (5th Cir. 1985). Winters,

815 So.2d at 1182.

¶26.     This Court has considered section (e) in other cases. In Cunningham v. Mitchell, 549

So.2d 955 (Miss. 1989), we considered the authority to sanction under Rule 37(e).          Noting

that courts have considerable discretion in imposing sanctions, this Court upheld a $200

sanction imposed against plaintiffs’ counsel based on counsel’s failure to notify the trial court

that he was unable to attend a hearing regarding the defendant’s motion to compel discovery.

Id. at 958.

¶27.    In Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss. 1997), this Court

affirmed dismissal of an action as a sanction imposed under Rule 37(b)(2) & (e) after

determining that the plaintiff had willfully concealed the fact that another person was present

when she was injured. Pierce, 688 So.2d at 1387.         The Court stated that the most severe

sanctions provided by statute or rule must be available to a trial court in appropriate cases, not

just to penalize those whose conduct may warrant such sanctions, but to deter those who might

be tempted to engage in such conduct in the absence of a deterrent. Id. at 1389 (citing Nat’l

Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780-81, 49

L.Ed.2d 747 (1976)).



                                               13
¶28.    Rule 37(e) gives great flexibility to the trial courts in the form of a general grant of

power which enables it to deal summarily with discovery abuses, whenever and however the

abuse is brought to the attention of the court.             M.R.C.P. 37 cmt.   Rule 37(e) does not

enumerate the sanctions available to the court and courts should have considerable latitude in

fashioning sanctions suitable for particular applications. Id.

¶29.    Second, in considering this issue, little reliance should be placed on Fed. R. Civ. P. 37,

or analysis thereof, because it does not contain a provision like our Rule 37(e).13          Little

reliance should have been placed on Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511(5th

Cir. 1985)) in our decision in Winters. Thus, Winters is overruled to the extent that it holds

that Rule 37 limits the imposition of expenses and attorney’s fees to those caused directly by

the other party’s failure to comply with the court’s orders. Winters, 815 So.2d at 1182.

¶30.    Aside from Winters, there are no other Mississippi opinions discussing the need to

hold the offending party in contempt as a prerequisite to imposing a fine for discovery

violations.   However, there were several cases from other jurisdictions holding so.           See

Paramount Advisors, Inc.           v. Schwartz, 591 So.2d 671 (Fla. Dist. Ct. App. 1991). The

assessment of a fine in the discovery context must be predicated on a finding of contempt. Id.

(citing Palm Shores v. Nobles, 5 So.2d 52 (Fla. 1941); Florida Physicians Ins. Reciprocal

v. Baliton, 436 So.2d 1110 (Fla. Dist. Ct. App. 1983)).



        13
            For that matter, there is a split among the federal courts of appeals as to whether
Federal Rule 37 provides authority to impose a noncompensatory, monetary fine and whether
such requires a finding of contempt. See Law v. NCAA, 134 F.3d 1438, 1443 (10th Cir. 1998).

                                                     14
¶31.    Unlike the trial court in Winters, the trial court here considered and declined to hold

Cooper Tire in contempt.       To impose a purely punitive, noncompensatory fine the offending

party must be held in contempt. State courts have the authority under Rule 37 to impose purely

monetary, noncompensatory fines for a violation of a discovery order.

        III.    Did the trial court hold Cooper Tire in contempt?

¶32.    As already stated, the sanction was based on the failure to obey the trial court’s order,

and the trial court declined to cite Cooper Tire in contempt.

¶33.    Typically, we are not forced to determine whether a trial court did indeed cite a party

for contempt. For instance, in Winters we considered the type of fines imposed and whether

the party was cited for civil or criminal contempt. In classifying a finding of contempt as civil

or criminal, this Court focuses on the purpose for which the power was exercised. Purvis v.

Purvis, 657 So.2d 794, 796 (Miss. 1994) (citing Common Cause of Miss. v. Smith, 548 So.2d

412, 415 (Miss. 1989). On appeal, the trial court’s classification is not conclusive. Purvis,

657 So.2d at 796 (citing In re Stewart, 571 F.2d 958, 963 (5th Cir. 1978)).            Thus, the

determination should focus on the character of the sanction itself and not the intent of the

court imposing the sanction.

¶34.    We find the fact that the trial court specifically declined to cite Cooper Tire in

contempt does not justify a deviation from the above approach. Because it was based on a

failure to obey a discovery order, we find that Cooper Tire was effectively held in contempt.

        A.      Was it civil or criminal?



                                                   15
¶35.    Recently, we considered at length the law regarding contempt and stated:

        We carefully examine contempt convictions. Melvin v. State, 210 Miss. 132,
        48 So.2d 856 (1950). Generally speaking, contempt matters are committed to
        the substantial discretion of the trial court which, by institutional circumstance
        and both temporal and visual proximity, is infinitely more competent to decide
        the matter than the Supreme Court. Cumberland v. Cumberland, 564 So.2d
        839, 845 (Miss.1990). When dealing with contempt matters, we must first
        determine whether the alleged contempt is either civil or criminal in nature. If
        the contempt is civil, the proper standard utilized for review is the manifest
        error rule. Id. If the contempt is criminal, then we will proceed ab initio and will
        determine on the record whether the person in contempt is guilty of contempt
        beyond a reasonable doubt. Id. If the primary purpose of the contempt order is
        to enforce the rights of private party litigants or enforce compliance with a
        court order, then the contempt is civil. Purvis v. Purvis, 657 So.2d 794, 796
        (Miss.1994).The contemnor may be jailed or fined for civil contempt; however,
        the contemnor must be relieved of the penalty when he performs the required
        act. Id. at 796-97. Criminal contempt penalties, on the other hand, are designed
        to punish the contemnor for disobedience of a court order; punishment is for
        past offenses and does not terminate upon compliance with the court order.
        Common Cause of Miss. v. Smith, 548 So.2d 412, 415-16 (Miss.1989).

In re Williamson, 838 So.2d 226, 228 (Miss. 2002). We further discussed the two forms of

criminal contempt, direct and constructive, and stated:

        Direct criminal contempt involves words spoken or actions committed in the
        presence of the court that are calculated to embarrass or prevent the orderly
        administration of justice. Punishment for direct contempt may be meted out
        instantly by the judge in whose presence the offensive conduct was committed....

        Unlike direct contempt, constructive contempt involves actions which are
        committed outside the presence of the court ... In the case of constructive
        criminal contempt, we have held that defendants must be provided with
        procedural due process safeguards, including a specification of charges, notice,
        and a hearing.

Id. at 237 (citations omitted).




                                                   16
¶36.      Applying this analysis, we find that Cooper Tire was in constructive criminal contempt.

The fine imposed was to punish Cooper Tire’s failure to obey the discovery order and to

vindicate the authority of the trial court. See, e.g., Newell v. Hinton, 556 So.2d 1037, 1044

(Miss. 1990) ("[A] criminal contempt proceeding is maintained solely and simply to vindicate

the authority of the court or to punish otherwise for conduct offensive to the public in

violation of an order of the court."). The fines were to be paid to the trial court and did not

involve the rights of plaintiffs or other private parties.

¶37.      As noted, a person charged with constructive criminal contempt is afforded certain

procedural safeguards.       The citing judge must recuse himself from conducting the contempt

proceedings involving the charges. “[I]t is necessary for that individual to be tried by another

judge in cases of constructive contempt where the trial judge has substantial personal

involvement in the prosecution.” In re Williamson, 838 So.2d at 238 (citing Terry v. State,

718 So.2d 1097 (Miss. 1998)). In Williamson, this Court reversed and remanded finding that

it was improper for the citing judge to preside where he was a material witness.        Based on

Williamson, Cooper Tire is entitled to have proceedings before a different judge.

          IV.    Did the Trial Court Abuse its Discretion?

¶38.      Trial courts have considerable discretion in discovery matters, and their decisions will

not be overturned unless there is an abuse of discretion. Robert v. Colson, 729 So.2d 1243,

1245 (Miss. 1999) (citing Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.

1992)).



                                                        17
¶39.     The $10,000 rate chosen by the trial judge was the same rate imposed on Cooper Tire

by the District Court of Wise County, Texas, in Salas v. Cooper Tire & Rubber Inc., No. 01-

05- 354.    The trial court first announced the prospective fine after determining that Cooper Tire

misled the court regarding whether it had certain records stored electronically.     However, the

sanction was not actually ordered until after a settlement had been reached by the parties. At

that time many alternative sanctions, such as the striking of pleadings or defenses, were not

available to the trial court.

¶40.     Both parties argue that the settlement is determinative to this appeal.    On one hand,

plaintiffs contend that based on the settlement Cooper Tire has no right to appeal the sanction.

Cooper Tire argues that the settlement rendered moot all issues regarding sanctions. Both are

wrong.     A settlement between the parties does not foreclose the trial court’s authority to

sanction a party or administer its proceedings.

¶41.     Cooper Tire further argues that the trial court abused its discretion by granting a motion

to compel despite plaintiffs’ failure to satisfy URCCC          4.04(c), which provides that “no

motion to compel shall be heard unless” the movant certifies with the motion that he or she

conferred in good faith with opposing counsel to resolve the dispute but was unsuccessful.

Though we agree that no such certification was provided, it does not excuse Cooper Tire’s

failure to abide an otherwise valid court order.

¶42.     In arguing that the sanction was actually based on criminal contempt, Cooper Tire

argues that sanction violates a host of constitutional principles.     Because we reverse and

remand based on our holding in Williamson, we need not address those issues.

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                                           CONCLUSION

¶43.    We find that the sanctions imposed were based on Cooper Tire’s failure to obey the

July 30 discovery order. Under Rule 37 and the inherent power to protect the integrity of its

process, the trial court has the broad authority to impose sanctions for discovery violations and

violations of its orders.    However, a purely punitive fine may be imposed only after the

offending party be held in contempt.

¶44.    In the instant case, the trial court effectively held Cooper Tire in constructive criminal

contempt.    Under Williamson, Cooper Tire had the right to present its defense regarding

contempt before a judge with no individual involvement.             Finally, neither the fact that the

parties entered into a settlement nor the plaintiffs’ failure to attach a good faith affidavit to a

motion to compel foreclosed the trial court’s authority to sanction Cooper Tire.

¶45.    Accordingly, we reverse the trial court’s $10,000 sanction of Cooper Tire, and we

remand this case for further proceedings consistent with this opinion before a different trial

judge during which Cooper Tire shall be allowed to present a defense regarding whether it is

guilty of contempt.

¶46.    REVERSED AND REMANDED.

    SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. COBB, P.J., CONCURS IN RESULT ONLY. EASLEY, J. DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




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