                                                                                             02/13/2018


                                            DA 17-0227
                                                                                        Case Number: DA 17-0227

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            2018 MT 21



E. COX and C. COX,

               Plaintiffs and Appellants,

         v.

GLEN MAGERS,

               Defendant and Appellee.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV-16-247(D)
                       Honorable David M. Ortley, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       C. Cox, E. Cox, Self-Represented, Plains, Montana

                For Appellee:

                       Sean Goicoechea, Chris Di Lorenzo, Moore, Cockrell, Goicoechea &
                       Johnson, P.C., Kalispell, Montana



                                                    Submitted on Briefs: December 13, 2017

                                                               Decided: February 13, 2018


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     E. Cox and C. Cox filed an action against Glen Magers seeking damages for

personal injuries allegedly sustained in an automobile collision. They now appeal the

District Court’s order dismissing the action with prejudice under M. R. Civ. P. 37(d) due

to each plaintiff’s failure to fully answer interrogatories or to produce relevant documents

during discovery. We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     In February 2010, Magers was driving his pickup truck in downtown Kalispell when

he struck the rear of a 1990 Ford Escort driven by C. Cox. E. Cox sat in the front passenger

seat. Magers admitted that, at the time of the collision, he was watching a parking

enforcement officer approach the road near his vehicle rather than the traffic in front of

him.

¶3     Almost three years later, in February 2013, C. Cox and E. Cox filed a complaint

against Magers in Sanders County District Court alleging “physical and mental damages,”

property damage, loss of income, and increases in expenses as a result of the collision.

They served the complaint on Magers on February 1, 2016. Ten days later, Magers mailed

interrogatories and requests for production for both E. Cox and C. Cox in one envelope to

their address of record in Plains, Montana. The next day, Magers filed his answer and a

motion to change venue to the Flathead County District Court. He served copies to E. Cox

and C. Cox via mail to the same P.O. Box. The Sanders County District Court granted the

motion for change of venue and transferred the case to Flathead County in early March.




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¶4     At some point, C. Cox changed his address to a different P.O. Box in Plains. E. Cox

continued to use the original address throughout the litigation. C. Cox alleges that he filed

a change of address with the Sanders County District Court, but no change of address notice

from that court is included in the record. In his briefing to this Court, Magers states that

he received a change of address notice from C. Cox on March 16. The record shows that

C. Cox filed a change of address with the Flathead County District Court on April 4.

¶5     In early April, Magers sent another letter addressed to both E. Cox and C. Cox,

which explained that their responses to his discovery requests were overdue and included

another copy of the discovery requests for each party. It is unclear from the record to which

P.O. Box Magers sent this letter. About a week later, E. Cox sent Magers her handwritten

responses to his interrogatories, along with a letter informing Magers that any mail sent to

her P.O. Box was not being forwarded to C. Cox. She did not produce any of the requested

documents but wrote, “Any appropriate documents mentioned in your requests for

production 1 through 16 which are in my possession will be produced at the specified

location within 30 days from the date of this letter.”

¶6     Magers responded to E. Cox, explaining that her responses were incomplete and

only partially legible. He included another copy of the discovery requests with more space

provided. On the same day, Magers sent a separate letter to C. Cox requesting his belated

responses. E. Cox later claimed that she did not receive Magers’s letter because it was sent

to C. Cox’s address. Magers produced envelopes showing that both letters were sent to the

address used by E. Cox. In her briefing before this Court, E. Cox changes her position




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and states that she responded to this request with a second set of answers to the

interrogatories. Magers states that he did not receive this response.

¶7     Following these letters, C. Cox filed a Request to Strike All Filings by Defendant,

arguing that Magers had “failed and neglected to serve copies of his various filings on each

of the plaintiffs.” His motion stated that a brief would be filed within the allowable time.

When C. Cox did not file a brief, the District Court summarily denied his motion for failure

to follow Rule 2(a) of the Uniform District Court Rules.

¶8     Almost two months after resending his requests for discovery, Magers sent a letter

to C. Cox informing him that if he did not respond Magers would file a motion to compel

discovery. C. Cox did not submit responses to the discovery requests and Magers filed a

motion to compel. E. Cox and C. Cox each filed a brief in opposition to the motion. C.

Cox argued that he had not been properly served with the interrogatories and was therefore

not required to respond. E. Cox argued that she already had responded to the requests.

Neither argued that he or she was not in “possession, custody, or control” of the requested

documents. The court granted the motion to compel and ordered both Coxes to answer the

interrogatories fully and to produce responsive documents, “including any medical records

or bills related to claimed injuries and damages,” within fourteen days of the order. The

court warned that if the Coxes did not comply, it would “consider appropriate sanctions,

including potential dismissal of Plaintiffs’ claims.”

¶9     Following the order, the Coxes sent separate letters to Magers informing him that

they would make responsive documents available to him in C. Cox’s office in Plains on

two different days. Magers requested that the Coxes copy and mail the documents to his


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attorneys’ offices and offered to cover copying costs. C. Cox and E. Cox did not do so. In

his briefing to both the District Court and this Court, C. Cox states that the only documents

that would have been made available in Plains were the documents that Magers had

supplied to the Coxes.

¶10    More than fourteen days after the court’s order, C. Cox and E. Cox each sent their

respective interrogatory responses to Magers.            Neither plaintiff provided any

documentation with the responses. The following day, Magers sent letters to both Coxes

that pointed to specific examples of incomplete answers—such as describing the cause of

their injuries, but not identifying any actual injuries; failing to provide names of medical

providers; and providing only general cost estimates of damages with no explanation of

how the losses were calculated. Magers asked for more complete answers and offered the

Coxes additional time to comply.

¶11    When Magers did not receive supplemental responses from the Coxes, he filed a

motion to dismiss under both M. R. Civ. P. 37(b) and (d). It had been seven months since

his first discovery request and more than six-and-a-half years since the collision. In

compliance with M. R. Civ. P. 37(d)(1)(B), Magers certified that he had attempted in good

faith to confer with the Coxes in an effort to obtain the requested discovery information

without court action and had been unsuccessful. Both C. Cox and E. Cox filed briefs in

opposition listing various reasons why they could not or should not have to comply with

the discovery requests or the court’s order. No party requested a hearing. The court granted

the motion to dismiss under M. R. Civ. P. 37(d) and ordered the Coxes to pay Magers’s

reasonable expenses, including attorney fees. The District Court found that Magers


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properly served both Coxes with the discovery requests on February 11; that the Coxes

failed to sign their responses under penalty of perjury without limitation pursuant to

§ 1-6-105, MCA; that the Coxes failed to answer interrogatories fully or to produce

responsive documents; that the Coxes violated the court’s order compelling them to

produce medical records; that the District Court properly served the order compelling

discovery on the Coxes; and that the explanations the Coxes offered did not substantially

justify their failure to comply or demonstrate that circumstances made an award of

expenses unjust.

¶12    Both Coxes filed motions to reconsider under M. R. Civ. P. 59. The court denied

both motions. After additional briefing and a reasonableness hearing, judgment was

entered against the Coxes, dismissing their claim with prejudice and ordering them to pay

Magers $6,634.50 in attorney fees and costs. E. Cox appeals the District Court’s order

dismissing the case and imposing sanctions and its order denying her motion to reconsider.

C. Cox appeals the District Court’s order dismissing the case, the District Court’s failure

to rule on the motion to quash subpoenas before granting the motion to dismiss, and the

District Court’s order denying his motion to strike all the defendant’s filings.1

                                STANDARDS OF REVIEW

¶13    We review for abuse of discretion a district court’s imposition of sanctions for

discovery abuses. Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 27, 303 Mont. 274,



1
  We dismissed the Coxes’ first appeal to this Court as premature, because the District Court had
not yet determined the reasonableness of the fees and expenses. Cox v. Magers, No. DA 16-0686,
Or. (Mont. Jan. 31, 2017).


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16 P.3d 1002. A district court abuses its discretion when it acts arbitrarily, without the

employment of conscientious judgment, or when its decision exceeds the bounds of reason.

Schuff, ¶ 27.

                                       DISCUSSION

¶14    In reviewing discovery sanctions, we focus first on “whether there was an actual

failure to comply with the judicial process,” and second on “whether the severity of the

sanction was appropriate.” See Xin Xu v. McLaughlin Research Inst. for Biomedical Sci.,

Inc., 2005 MT 209, ¶ 21, 328 Mont. 232, 119 P.3d 100. E. Cox and C. Cox, both appearing

on their own behalf, raise various challenges to the District Court’s order dismissing their

claims for discovery abuse. Their claims fall into two general categories.

       A. Failure to Comply with the Judicial Process

¶15    “The purpose of discovery is to promote the ascertainment of truth and the ultimate

disposition of the lawsuit in accordance therewith. Discovery fulfills this purpose by

assuring the mutual knowledge of all relevant facts gathered by both parties which are

essential to proper litigation.” Richardson v. State, 2006 MT 43, ¶ 22, 331 Mont. 231, 130

P.3d 634 (quoting Massaro v. Dunham, 184 Mont. 400, 405, 603 P.2d 249, 252 (1979)).

In that vein, the discovery rules are “liberally construed to make all relevant facts available

to parties in advance of trial and to reduce the possibilities of surprise and unfair

advantage.” Richardson, ¶ 24. While we generally encourage trial courts to make

accommodations for parties choosing to represent themselves, such “flexibility cannot give

way to abuse.” First Bank (N.A.)-Billings v. Heidema, 219 Mont. 373, 376, 711 P.2d 1384,

1386 (1986). Any latitude given to self-represented litigants “cannot be so wide as to


                                              7
prejudice the other party. . . . To do so makes a mockery of the judicial system and denies

other litigants access to the judicial process.” Heidema, 219 Mont. at 376, 711 P.2d at

1386. “It is reasonable to expect all litigants, including those acting pro se, to adhere to

the procedural rules.” Heidema, 219 Mont. at 376, 711 P.2d at 1386.

¶16    M. R. Civ. P. 33 requires parties to litigation to respond to written interrogatories

regarding any non-privileged matter that is relevant to any party’s claim or defense. The

responding party must respond fully, and any objection to an interrogatory must be stated

with specificity. See M. R. Civ. P. 33(b)(3)-(4).

¶17    M. R. Civ. P. 34(a)(1) requires the responding party to produce any relevant,

non-privileged documents in the responding party’s “possession, custody, or control” that

an opposing party requests. A party must either state that it will accommodate the request

or assert an objection and state the reason for the objection. M. R. Civ. P. 34(b)(2)(B)-(C);

Richardson, ¶ 46.

¶18    C. Cox first argues that he was not obligated to respond to Magers’s discovery

requests under M. R. Civ. P. 33 and 34 until thirty days after July 26 because he was not

properly served with the discovery requests until that date. We disagree. M. R. Civ. P.

5(b)(2)(C) states: “A paper is served under this rule by . . . mailing it to the person’s last

known address—in which event service is complete upon mailing.” Magers sent his first

discovery request to C. Cox’s address of record on February 11. Nothing in the record

supports a claim that C. Cox changed his address before February 11. E. Cox informed

Magers that she was not obligated to “forward” anything to C. Cox; at the time the

interrogatories were first served, though, C. Cox did not have a different address on record.


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It is of no consequence that Magers sent the requests for C. Cox and E. Cox in the same

envelope; there is nothing in the rules to suggest that the requests had to be sent in different

envelopes to each party. Further—as C. Cox clarified in his brief opposing the motion to

dismiss before the District Court—C. Cox does not claim that he did not receive the

discovery requests, only that he was not properly served. Regardless of any later address

mix-ups, C. Cox was properly served with the original request at his address of record and

was obligated to respond within thirty days.

¶19    Both Coxes argue that they appropriately responded to Magers’s discovery requests

before the District Court dismissed their claims. E. Cox argues that she answered Magers’s

interrogatories twice before he filed his motion to compel. Both argue that they objected

to the questions they did not answer fully and that they were not required to produce

documents not in their physical possession.

¶20    Magers was entitled to discover evidence related to the damages the Coxes alleged

in their complaint, so that he could appropriately respond to their claims or work toward

settlement. In their complaint, the Coxes claimed various damages. E. Cox alleged injuries

requiring transport to the Plains Clinic. C. Cox alleged that he was knocked unconscious

and sustained injuries to his head, neck, back, and arms, some of which were permanent

and ongoing. Both Coxes claimed to suffer “great pain of mind and body,” which resulted

in spending time and money obtaining medical treatment, including doctor visits, physical

therapy, equipment, medicine, and travel, as well as loss of income and increases in

expenses. In addition, C. Cox alleged various property damage.




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¶21    We agree with the District Court that Magers’s interrogatories and requests for

production of documents were relevant and legitimate based on the damages alleged in the

Coxes’ complaint. The requests appropriately were targeted to discover evidence related

to the Coxes’ claims and Magers’s possible defenses. C. Cox and E. Cox put their physical

and mental condition, as well as their income, at issue. Therefore, C. Cox and E. Cox were

required to answer interrogatories about their health and income and to produce

documentation supporting their claims.

¶22    If requests are too broad, a responding party must object and specifically state the

reasons for objecting in his or her response. See M. R. Civ. P. 33. After attempting to

resolve the dispute in good faith with the opposing party, the responding party may seek

an order of protection from the district court to limit discovery. See M. R. Civ. P. 26(c).

The Coxes did neither of these things. Failing to answer, stating the party cannot recall, or

asserting that the request is not applicable does not state an objection with specificity.

There is no indication in the record that the Coxes attempted to express any specific

objections to Magers or to resolve any disagreements over the scope of his interrogatories.

Further, under M. R. Civ. P. 37(d), a failure to answer interrogatories or to produce

documents “is not excused on the ground that the discovery sought was objectionable,

unless the party failing to act has a pending motion for a protective order under Rule 26(c).”

M. R. Civ. P. 37(d)(2). Neither C. Cox nor E. Cox filed a motion for a protective order

before the District Court at any time during this litigation. Magers was entitled to the

information he sought in order to assess and build a defense against the damages the Coxes




                                             10
alleged in their complaint. The Coxes’ failure to answer interrogatories fully or to produce

responsive documents violated the rules of discovery.

¶23    Both Coxes also argue that they were not required under M. R. Civ. P. 34 to retrieve

documents—such as their medical records—from third parties. They each argue that their

medical records were not in their physical possession. Under M. R. Civ. P. 34(a)(1), a

party may request relevant documents in the opposing party’s “possession, custody, or

control.” Under its plain language, the rule is not limited to documents in a party’s physical

possession. Federal Rule of Civil Procedure 34(a)(1) is identical to M. R. Civ. P. 34(a)(1).

Federal courts that have addressed the meaning of documents in a party’s “control” have

held that “control is defined as the legal right to obtain documents upon demand.” United

States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989)

(citing Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984)). We adopt this definition

for “control” under M. R. Civ. P. 34(a)(1). C. Cox argues that he was unable to obtain

subpoenas to acquire his medical records from his providers and thus could not obtain his

medical records. However, subpoenas are not required to obtain one’s own medical

records. Under § 50-16-541, MCA, a medical provider must provide a patient with a copy

of the patient’s own medical records upon the patient’s request. In other words, a patient

has a legal right to obtain the patient’s own medical records upon demand. Thus, a party’s

own medical records are in that party’s “control.” Absent a court order limiting discovery,

C. Cox and E. Cox were required to produce the requested medical records for Magers to

inspect.




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¶24    The Coxes’ incomplete responses and refusal to produce documents violated M. R.

Civ. P. 33 and 34. Further, the Coxes violated a court order compelling them to respond

fully and to produce responsive documents, specifically including their medical records.

The Coxes clearly failed to comply with the judicial process.

       B. Severity of Sanctions

¶25    Time after time, this Court has held that discovery abuse will not “be dealt with

leniently and that the transgressors of discovery abuses should be punished rather than

encouraged repeatedly to cooperate.” Smith v. Butte-Silver Bow Cnty., 276 Mont. 329,

332, 916 P.2d 91, 92-93 (1996) (citing Owen v. F.A. Buttrey Co., 192 Mont. 274, 277-78,

627 P.2d 1233, 1235 (1981)); see also Xin Xu, ¶ 20 (applying the same policy of

non-leniency to self-represented litigants). “District courts are better positioned than we

are to evaluate the conduct and good faith of parties during discovery, and as such they

enjoy considerable leeway in sanctioning discovery abuses.” Peterman v. Herbalife Int’l,

Inc., 2010 MT 142, ¶ 23, 356 Mont. 542, 234 P.3d 898.

¶26    Under M. R. Civ. P. 37(d), a district court may dismiss a claim and order sanctions

upon motion of the opposing party if a responding party fails to answer or to object to

interrogatories or requests for production. M. R. Civ. P. 37(d) does not require a party’s

complete failure to answer interrogatories or otherwise respond to discovery requests;

rather, sanctions are appropriate when responses are unsigned, late, and not fully

responsive. Eisenmenger ex rel. Eisenmenger v. Ethicon, Inc., 264 Mont. 393, 402,

871 P.2d 1313, 1318 (1994).




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¶27    When we assess the propriety of sanctions imposed by a district court, we consider

a number of factors: whether the sanction relates to the extent and nature of the actual

discovery abuse; whether the sanction relates to the extent of the prejudice to the opposing

party; whether the sanction is consistent with the consequences expressly warned of by the

district court, if a warning was issued; and whether the party disregarded the court’s orders

and authority. See Culbertson-Froid-Bainville Health Care Corp. v. JP Stevens & Co. Inc.,

2005 MT 254, ¶ 14, 329 Mont. 38, 122 P.3d 431; Xin Xu, ¶ 26.

¶28    C. Cox argues that even if the district court properly dismissed his medical and lost

income claims, the court should not have dismissed his claims for property damage. Both

Coxes argue that the sanctions were improper because they were not given an adequate

warning that dismissal was a possible sanction and because no hearings were held.

¶29    The Coxes failed to comply with the rules of discovery in any meaningful way; both

E. Cox and C. Cox did not respond fully to interrogatories, and neither provided any

responsive documents. After months of attempting to obtain discovery responses from the

Coxes, Magers did not even know what specific injuries the Coxes claimed as a result of

the collision. The extent of the Coxes’ discovery abuses impermissibly prejudiced Magers.

The lack of substantive response meant not only that Magers could not prepare a defense,

but that he could not assess the value of the Coxes’ claims or attempt to settle with them.

He was forced to litigate the case under a “cloud of uncertainty.” Culbertson, ¶ 18. The

District Court did not abuse its discretion in dismissing the claim in its entirety, including

any claims for property damage, because the Coxes failed to answer interrogatories or to

provide documentation to support any of their claims.


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¶30    The Coxes’ argument that they were inadequately warned about the possibility of

sanctions also fails. Under M. R. Civ. P. 37(d), the district court is not required to forewarn

a party of possible sanctions or to hold a hearing. Dambrowski v. Champion Int’l Corp.,

2000 MT 149, ¶ 23, 300 Mont. 76, 3 P.3d 617. Plaintiffs are entitled only to notice and an

opportunity to be heard. Dambrowski, ¶ 24. Magers’s motion to compel and his motion

to dismiss put the Coxes on notice that the court may order sanctions. E. Cox and C. Cox

had opportunities to be heard: they each filed briefs opposing both motions, and neither

plaintiff requested a hearing. Further, in its order granting Magers’s motion to compel, the

court specifically warned the Coxes that failure to comply with discovery requests could

result in “potential dismissal of Plaintiffs’ claims.”

¶31    We recognize that E. Cox and C. Cox are representing themselves. However,

self-represented parties may not flout the rules of discovery and court orders. All plaintiffs

must adhere to the procedural rules. Xin Xu, ¶ 23. When, as here, the trial court’s discovery

sanction relates to the extent of the prejudice that resulted from the discovery abuse, it does

not abuse its discretion.

¶32    To the extent that E. Cox and C. Cox purport to raise other issues with the underlying

litigation, their claims are not supported by citation to legal authority. Pursuant to M. R.

App. P. 12(1)(g), we decline to address those issues. See Smart v. Molinario, 2004 MT 21,

¶ 15, 319 Mont. 335, 83 P.3d 1284.




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                                    CONCLUSION

¶33   The District Court did not abuse its discretion by granting Magers’s motion for

sanctions, denying C. Cox’s motion to strike, and denying E. Cox’s motion to reconsider.

Its judgment dismissing the complaint is affirmed.


                                                /S/ BETH BAKER

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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