Conference Requirements and Consideration of Lesser Sanctions

After Union Carbide served a treating physician with a subpoena duces tecum that encompassed records spanning over 30 years, plaintiffs' counsel filed a motion for sanctions, asserting that the discovery requests were overbroad, harassing, and annoying, and he sought costs expended in defending against the subpoena duces tecum.  Union Carbide first learned of the motion for sanctions when it was served with copies of the motion, and its counsel then expressed a willingness to withdraw the subpoena duces tecum and proposed a nonsuit.  Plaintiffs' counsel proceeded with his motion and the trial court granted sanctions and awarded attorney's fees in the amount of $11,250.

Union Carbide appealed.  The Dallas Court of Appeals vacated the sanctions order because Plaintiffs' counsel did not confer with Union Carbide's counsel prior to filing his motion for sanctions, as was required by the local rules of procedure.   In addition, the court held that the award of attorney's fees was not proper because the record failed to show that the trial court had considered whether lesser sanctions would have deterred the conduct in question.  The court's opinion in Union Carbide Corp. v. Martin may be found here.

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