Hill v. Tevogt, 879 N.W.2d 369

In 2012 Tevogt bought Hill and Thorsen’s membership interests in JGP, LLC and executed a promissory note; he later defaulted and plaintiffs sued to collect roughly $120,000 plus interest.
Tevogt asserted multiple defenses and counterclaims alleging fraudulent misrepresentation and concealment by Hill and Thorsen concerning JGP’s finances (notably an alleged ~$60,000 shortfall in an underwriting account).
The plaintiffs moved for summary judgment; Hill submitted an affidavit denying misrepresentation and stating Tevogt knew of the shortfall before the loan.
Tevogt submitted an affidavit contradicting that timeline and alleging the plaintiffs concealed the underwriting account shortfall and other financial problems.
Plaintiffs attempted to depose Tevogt twice; Tevogt did not appear for either deposition (his counsel attended the first and reported Tevogt was out of the country; counsel says he did not receive notice for the second).
The district court sanctioned Tevogt by excluding the statements in his affidavit about the underwriting account shortfall, then granted summary judgment to the plaintiffs; the Nebraska Supreme Court reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exclusion of Tevogt’s affidavit statements was a proper discovery sanction for failing to attend depositions	Exclusion is just because Tevogt prevented plaintiffs from deposing him about those statements	Exclusion was unduly harsh: counsel attended first deposition, excusable absence, no warning, no lesser sanctions considered	Reversed: exclusion was an abuse of discretion given lack of warning, no lesser sanctions considered, and questionable willfulness
Whether summary judgment for plaintiffs was proper after exclusion of Tevogt’s affidavit	With Tevogt’s affidavit excluded, no genuine issue remains and plaintiffs are entitled to judgment on the promissory note	Excluding the affidavit eliminated the only evidence supporting fraud/counterclaims, so summary judgment was improper	Reversed: because exclusion was improper, summary judgment cannot stand; remand for further proceedings

Coral Prod. Corp. v. Central Resources, 273 Neb. 379 (2007) (standards for appellate review of discovery rulings)
Paulk v. Central Lab. Assocs., 262 Neb. 838 (2001) (purpose of discovery and sanctions under rule 37)
Behrens v. Blunk, 280 Neb. 984 (2010) (abuse of discretion standard and discovery sanction principles)
Norquay v. Union Pacific Railroad, 225 Neb. 527 (1987) (sanctions available under discovery rules)
Collins v. Illinois, 554 F.3d 693 (7th Cir. 2009) (federal authority on requiring bad faith/willfulness before imposing death-penalty discovery sanctions)