Plaintiffs appeal from the trial court’s dismissal of their personal injury action against defendant arising out of an automobile accident that they allege resulted from defendant’s negligence. The trial court dismissed the case as a sanction for plaintiffs’ counsel’s belated compliance with a discovery order, in violation of ORCP 46 B.
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The Supreme Court reversed the dismissal and remanded for “further proceedings’ ’ on the ground that the trial court had not made the requisite findings to impose the sanction of dismissal, reasoning that findings were necessary to enable meaningful review by an appellate court.
Pamplin v. Victoria,
“To assess the propriety of imposing that sanction, an appellate court needs to know (1) the historical facts on which the trial court based its decision to impose it and (2) the analytical process by which the trial court concluded that dismissal is ‘just’ in view of those facts and in view of the other sanctions that are available. The present case provides a classic example of the difficulty of meaningful appellate review, because of the unresolved factual questions in the record.
“In summary, we hold that a trial court that imposes the sanction of dismissal under ORCP 46 B(2)(c) must make findings of fact and must explain why that sanction is ‘just’; that a finding of willfulness, bad faith, or fault of a similar degree on the part of the disobedient party is required; and that a finding of prejudice to the party seeking discovexy is not required.”319 Or at 431 .
On remand, defendant renewed her motion to dismiss for noncompliance with the discovexy order and, with the trial court’s permission, added as a ground for dismissal plaintiffs’ failure to comply with defendant’s request for production, in violation of ORCP 46 D. The trial court dismissed the case on both grounds.
On appeal, plaintiffs contend that the trial court abused its discretion by permitting defendant, for the first time on remand, to add as an additional ground for dismissal the failure to comply with the request for production. We
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have considered each of plaintiffs’ arguments and each of the cases cited and discussed,
Shaver Co. v. Eagle Star Ins. Co.,
Plaintiffs next contend that the circuit court’s findings on remand with regard to the violation of ORCP 46 D (noncompliance with a request for production) are not adequate to support the imposition of the sanction of dismissal under the standard set out it Pamplin, because the circuit court made no finding that plaintiffs’ counsel acted willfully or in bad faith or with fault of a similar degree. Although the court made no explicit finding of willfulness with regard to the violation of ORCP 46 D, the court’s oral findings necessarily imply willfulness. In its oral ruling on remand the court said:
“In this case, every attempt at informal discovery was ignored. The request for production was likewise ignored. The resulting court order was not obeyed.
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“I find that the multiple, continuous, and lengthy failures to produce lead me to conclude that the disobedience of the court order was willful.” (Emphasis supplied.)
The court’s oral ruling is incorporated into the judgment of dismissal. In our view, the finding that plaintiffs’ counsel “ignored” requests for production is equivalent to a finding that he chose to take no notice of them and necessarily encompasses willfulness.
*567 Plaintiffs contend that the evidence does not support the court’s finding of willfulness with regard to the violátion of ORCP 46 B. We have reviewed the evidence and conclude that it is sufficient to support the court’s findings.
We conclude, nonetheless, that the court’s findings are insufficient to support imposition of the sanction of dismissal. Dismissal is the most drastic of sanctions, to be reserved for the most severe violations.
Hahm v. Hills,
Federal courts applying the federal counterpart to ORCP 46 have consistently held that the sanction of dismissal should be imposed “only when necessary to preserve the integrity of the judicial system, or in some other extreme circumstance,”
Hahm,
Reversed and remanded for reconsideration of sanction.
Notes
Plaintiffs have different counsel on appeal.