Cire v. Cummings
In Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004), the supreme court discussed that a lesser sanction may be an order charging all or a portion of the expenses of discovery on the disobedient party. Id. at 839. The Court found the facts of the case to be exceptional and concluded it was within the trial court's discretion to determine that plaintiff deliberately destroyed dispositive evidence thereby warranting the imposition of death-penalty sanctions. 134 S.W.3d at 841.
The Court explained that the trial court's order not only noted that lesser sanctions would be ineffective, but also "contained an extensive, reasoned explanation of the appropriateness of the sanction imposed, demonstrating that the trial court considered the availability of less stringent sanctions." Id. at 842.
The trial court's order noted that lesser sanctions would be ineffective because plaintiff concealed or destroyed critical evidence and plaintiff had refused to pay a previously ordered small monetary sanction. Id. at 841-42.
The trial court also noted that monetary sanctions could not cure plaintiff's wrongdoing of destroying evidence. Id. at 841.
The Court explained that ordinarily the trial court would be required to test the effectiveness of lesser sanctions, but "because of the egregious conduct and blatant disregard for the discovery process . . . including the violation of three court orders ordering production of the audiotapes," the death-penalty sanctions were clearly justified. Id. at 842.
The Court held that "striking pleadings is a harsh sanction that must be used as a last resort after the trial court has considered lesser sanctions, and that in all but the most egregious and exceptional cases, the trial court must test lesser sanctions before resorting to death-penalty sanctions." Id.
The Court further held that in cases of "exceptional misconduct" the trial court is not required to test the lesser sanctions before striking a party's pleadings so long as the record reflects that the trial court considered the lesser sanctions first and the party's conduct justified the presumption that plaintiff's claims lack merit. Id.
In such cases, the trial court is required to "analyze the available sanctions and offer a reasoned explanation as to the appropriateness of the sanction imposed." Id.
In Cire, the Court found the facts in that case represented an exceptional circumstance, "where the only objective evidence that would have supported or disproved plaintiff's claims was deliberately destroyed after the trial court thrice ordered it produced" and that such "intentionally egregious behavior" warrants the death-penalty sanction. Id. at 843.