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How to Avoid Terminating Sanctions

For most lawyers, terminating sanctions are something you'll never need to worry about. However, for the unlucky some, no matter how strongly you advise a client, they're just not going to get it.

In the recent child molestation case against the organization that runs the Jehovah's Witness church nationwide, the entire case hinged upon terminating sanctions stemming from a refusal to comply with a discovery order.

Below, you can get a few tips on how to avoid the same fate and the severe consequences that follow.

1. Obey Court Orders

Unless you're up against an activist judge who is 100% certainly ruling against established precedent, not obeying a court's order is just asking for trouble. And if a court asks you whether you intend to comply, the answer should always be yes.

2. If the Court Gives You a Last Chance, Take It

If a judge is specifically telling you that terminating sanctions will issue unless you do something, then you better do that something. In the above-mentioned case, the organization refused to turn over the documents ordered to be produced, then when the court specifically explained that terminating sanctions resulting in the organization's default would be issued in 30 days unless it complied, the organization still failed to produce the docs.

3. If Compliance Is Impossible, Do What Is Possible

If the order that the court is trying to enforce is literally impossible, doing what you can do might just be enough to avoid the severest terminating sanctions, though monetary sanctions might still be on the table if you delay doing what you can do.

For example, in the Jehovah Witness case, the documents at issue were stored electronically. Allegedly, due to a technology problem, the documents could not be produced as the organization could not search to find the relevant docs. However, under the circumstances, it is beyond belief that some other alternative, such as copying the entire drive or allowing a mutually agreed upon third-party expert to inspect and copy relevant documents, would not have at least prevented terminating sanctions from issuing.

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