Hawes Firearms Co. v. EdwardsHawes Firearms Co. v. Edwards
Until recently, Hawes Firearms Company and Gemini Investment Corporation, respectively, imported and distributed handguns manufactured by J. P. Sauer & Sohn, a West German manufacturer. The handguns were sold in the United States exclusively under Hawes’ name.
Respondent Paul A. Edwards was injured when a Hawes revolver accidently discharged. Edwards sued Hawes, Gemini, and others, 1 claiming that the handgun was defective.
In the course of pretrial discovery Edwards served Hawes with sixty-nine interrogatories pursuant to
On July 2,1980, Edwards moved to strike Hawes’ defenses pursuant to Civil Rule 37(b)(2)(C), сlaiming that Hawes had willfully failed to comply with the January 11 order. This motion was granted and the court entered an order striking the defenses of Hawes and requiring the trial, as to Hawes, to be conducted on the question of damages only.
Rule 37(b) sanctions are necessary for trial judges to enforce their discovery orders. “[T]he rule . . . invests the trial judge with broad discretion as to the choice of sanction in a given situation.”
Oaks v. Rojcewicz,
In the present case the court implicitly, but unmistakably, found that Hawes had willfully failed to make discovery in many respects.
2
Our review of the record has not
Among the interrogatories of particular concern to the trial court were those concerning insurance. Interrogatory No. 9 asks:
Please statе whether there is any insurance, either liability or otherwise, available to the Defendants to cover this cause of action.
Hawes responded that its liability policy was cancelled prior to the accident and that no policy was obtained thereafter. Edwards pointed out in his motion to compel that he had not asked what insurance Hawes Firearms alone had, rather what insurance coverеd his claim. The court ordered an answer to this interrogatory and to interrogatories contingent upon an affirmative answer to it. 3 In response, Hawes stated:
This information was requested from West Germany and no answer received yet; when rеceived and before trial, it will be provided to counsel.
No further answer was made as of July 2, 1980, when Edwards moved to strike Hawes’ defenses.
It subsequently became clear that the law firm of Merdes, Schaible, Staley & DeLisio, Inc., which was defending Hawes, had been retained to conduct Hawes’ defense by the New York attorney for J. P. Sauer & Sohn and Sauer’s insurance company. Sauer had agreed to indemnify Hawes in this action, and Sauer’s insurance company insured the indemnity agreement. The Merdes firm reported to New York counsel for Sauer and its insurer as to developments in the conduct of Hawes’ defense.
It is difficult to believe thаt Martha F. Hawes, who answered the interrogatories for Hawes concerning insurance, did not know that Sauer’s insurance company was involved in the defense of this litigation. Nevertheless, her ignorance of thаt fact would not justify withholding the truth, where it was known to her attorney. 4 Moreover, the insurance company which, along with Sauer, was financing and controlling the defense of this case plainly had a duty to reveal the еxistence and the details of its policy. 5 In our view the trial court was therefore justified in concluding that its order compelling answers to the interrogatories concerning insurance had been willfully disobeyed.
Request for Production No. 2 asked for “each piece of advertisement which has been used to advertise the Hawes and/or its predecessor single action revolvers in the United States or abroad.” The answer given initially was: “These Defendants have not advertised for years, but copies of all
Similarly, Edwards’ Request for Production No. 4 demanded “[cjopies of complaints, products liability logs or other evidence maintained by Hawеs, J. P. Sauer or any other company manufacturing or distributing Hawes single action revolvers evidencing reports of accidents or injuries occurring with the Hawes single action revolver or its predecessors.” Intеrrogatories 55, 56, and 57 also sought reports of other accidental injuries caused by Hawes products, along with the captions, including the jurisdiction and the name and address of the plaintiff’s attorney, of all lawsuits against Hawes. 7 Hawes responded to these various requests with a list, allegedly acquired from Hawes’ former insurance broker, containing little more than the names of 37 complainants and the dates of their cоmplaints. Despite the order, Hawes provided no further identifying information until after the court ordered its defenses stricken. At that time it produced a more complete list of complainants, supplied by J. P. Sauer. Hawes’ only excuse for its failure to obey the court’s order was that it had passed the information on to Sauer and to its former insurer. There can be no doubt, however, that Hawes had access at least to that information pertaining to the various lawsuits in which it was a named defendant.
In each of the examples we have given, adequate disclosure of the requested information was eventually accomplished after entry of the order striking Hawes’ defenses. This, however, does not mean that the order may not stand:
Final production is not determinative. The rule permits a sanction when a party “fails to obey an order.” . . . The ultimate, and reluctant, production of documents, more than a year after a legitimate request does not absolve [a party] of the charge that it willfully failed to obey a valid court order.
State of Ohio v. Arthur Andersen & Co.,
Although the trial judge relied on other instances of non-compliance in addition to those we have described, the above suffice to persuade us that the court did not err or abuse its discretion in entering the оrder which it did. Accordingly, the order is AFFIRMED.
Notes
. Included among the defendants were petitioners Hawes National Corporation, and Martha F. Hawes, whose functions with respect to the Hawes handguns were not differentiated in the complaint from those of Hawes Firearms Company and Gemini Investment Corporation. In this opinion we shall refer to all of the petitioners as Hawes.
. The court did not use the word “willful,” as such. Instead the court found that certain information and documents were available to Hawes, and were withheld from discovery without justification. Thus, in effect, the court placed the burden of showing that non-compliance was nоt willful on the party from whom discovery was sought. In our view, this was the proper approach, for the reasons expressed in
Frates v. Treder,
We do not agree with appellants’ basic premise, that the burden rests upon the pro-pounder of the interrogatories to proceed to prove wilfulness. If that were the requirement, then the moving party would have a limitless number of questions to answer, for there are an infinite number of possible rеasons why one may not have answered, most of them dependent upon the facts not at all within the ken of one’s opponent.
id.
. Interrogatory No. 10, which was never answered, asked:
If so, state the name of the insurance company, the policy term, the policy limits, and the policy number. If there are umbrella policies involved, state all of the policy limits.
.
Naismith v. PGA,
.
See Bingle
v.
Liggett Drug,
. The fact that these materials may have been in the possession of its advertising agency does not negate the faсt that Hawes had “control” of the items, within the meaning of Rule 34.
See In re Folding Carton Anti-Trust Litigation, 76
F.R.D. 420, 423 (N.D.Ill.1977);
Williams v. Consolidated Investors, Inc.,
. Although evidence of other complaints may or may not be admissible at trial, Edwards was certainly entitled to its discovery insofar as it could lead to the discovery of admissible evidence.
See
Annot.,