Shepard, C.J.
After an automobile collision in which Travis Becker struck Rickey Whitaker from behind, Whitaker filed suit for personal injuries.
Over the next year, Whitaker’s lawyer ignored repeated requests to provide information about his client’s medical treatment, finally responded only after the trial court ordered him to do so, and then supplied false and misleading information, and did so in a way that palpably damaged the defendant’s ability to ascertain the facts necessary to litigate the only real issue in the case.
Becker filed a motion for sanctions, seeking dismissal of Whitaker’s suit. The trial court found that both Whitaker and his lawyer had acted in bad faith and concluded that dismissal was the only realistic and effective remedy. It dismissed the case. We affirm.
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Outright Dismissal for Misleading Responses That Make a Full Defense Impossible
The purpose of the discovery rules is to allow for minimal trial court involvement and to promote liberal discovery. Chustak v. Northern Ind. Pub. Serv. Co., 259 Ind. 390, 288 N.E.2d 149 (1972). Although “concealment and gamesmanship were [once] accepted as part and parcel of the adversarial process,” we have unanimously declared that such tactics no longer have any place in our system of justice. Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 77 (Ind. 2006) (quoting Harvey v. Horan, 285 F.3d 298, 317–18 (4th Cir. 2002)). Today, “the purpose of pretrial discovery is to ‘make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.’” Id. (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)).
In service of that goal, Indiana Trial Rule 37(B)(2)(c) expressly provides that a trial court may impose sanctions, including outright dismissal of the case or default judgment, if a party fails to comply with an order to compel discovery. As the U.S. Supreme Court has explained, the purpose of sanctioning discovery violations is “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).
Whitaker argues that the trial court abused its discretion here because the court’s order was “primarily founded” on the finding that Whitaker’s actions prevented Becker from obtaining a valid independent medical examination, which Whitaker claims is not so. (Appellant’s Br. at 9.) Moreover, Whitaker argues that he did not conceal his surgery from Becker and that Becker suffered no prejudice in any event. (Appellant’s Br. at 14–17.) Finally, Whitaker argues that he did give Becker notice of his need for surgery because he notified a claims representative for Becker’s insurance company. (Appellant’s Br. at 17–19.)
In response, Becker argues that the trial court acted appropriately because the uncontroverted evidence shows that Whitaker violated a court order by submitting false and misleading answers to Becker’s interrogatories, answers to which were already long overdue. (Appellee’s Br. at 8–12.) Moreover, Becker argues, the trial court found that these responses materially prejudiced Becker’s defense, a finding the trial court did not necessarily need to make to warrant dismissal, but one that clearly supports it. (Appellee’s Br. at 12–16.) Finally, Becker argues that while Whitaker waived any argument that Whitaker gave notice to Becker through a claims representative for his insurance company, this notice really constituted no notice at all in any event. (Appellee’s Br. at 16–21.)
This state’s case law confirms the notion that under the appropriate facts a trial court may enter an outright dismissal or default judgment when a party failed to respond to discovery requests on time, the trial court granted an order to compel discovery, and the party violated the order to compel by failing to respond. See, e.g., Peters v. Perry, 877 N.E.2d 498 (Ind. Ct. App. 2007); see also Pfaffenberger v. Jackson Cty. Reg’l Sewer Dist., 785 N.E.2d 1180 (Ind. Ct. App. 2003); Wozniak v. Northern Ind. Pub. Serv. Co., 620 N.E.2d 33 (Ind. Ct. App. 1993), trans. denied; Mulroe v. Angerman, 492 N.E.2d 1077 (Ind. Ct. App. 1986).
A court may sometimes do likewise when a delinquent party did respond but did so in an incomplete or misleading way. See, e.g., Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628 (Ind. Ct. App. 2008) (forged document and refusals to produce others); see also Mallard’s Pointe Condominium Ass’n, Inc. v. L&L Investors Group, LLC, 859 N.E.2d 360 (Ind. Ct. App. 2006) (appearing at deposition without documents under subpoena duces tecum), trans. denied; Ross v. Bachkurinskiy, 770 N.E.2d 389 (Ind. Ct. App. 2002) (responding to only one of four sets of interrogatories); Castillo v. Ruggiero, 562 N.E.2d 446 (Ind. Ct. App. 1990) (responding with reference to allegations in complaint and by claiming information unavailable without showing why), trans. denied. Although the regular practice is to fashion progressive sanctions leading up to a dismissal or default judgment when it is possible to do so, imposing intermediate sanctions is not obligatory when a party’s behavior is particularly egregious. Prime Mortgage, 885 N.E.2d at 649.
In Prime Mortgage, for example, a shareholder filed suit against her corporation’s co-owner, alleging that they each owned fifty percent of the corporation and that it was deadlocked, and seeking a dissolution. Id. at 637–38. The co-owner missed his first deadline for producing corporate records, the trial court had granted the shareholder’s motion to compel, and the co-owner still refused to produce twenty-two of twenty-seven requested documents. Id. at 647. The only documents the co-owner produced were ones to which the plaintiff already had access. Id. The co-owner later violated a second order to compel in much the same way. Id. at 647–48.
Of particular interest, however, when the co-owner first answered the shareholder’s complaint, he produced a forged shareholder’s agreement under which he claimed he had sold shares to his daughter and an employee. Id. at 637, 650. As a result, the co-owner claimed, the shareholder did not own fifty percent of the corporation, so the corporation was not deadlocked and no dissolution was necessary. See id. at 637. On the shareholder’s motion for sanctions, the trial court entered a default judgment, and the Court of Appeals affirmed. Id. at 638, 652. The Court of Appeals found that forging the shareholder’s signature on the agreement went to the heart of the case and forced the shareholder to change the theory on which she proceeded. Id. at 651.
Here, Whitaker’s counsel failed to respond to discovery requests on time, the trial court issued an order to compel discovery, and Whitaker responded in a false and misleading way. [Footnote omitted.] Whitaker’s counsel did not respond to Becker’s interrogatories within the time limits set out in the Indiana Trial Rules. Whitaker’s counsel ignored three separate reminder letters from Becker’s counsel reminding him his responses were overdue, prompting the order to compel discovery under Trial Rule 37(A). Whitaker’s counsel violated the court’s order to compel by providing false and misleading answers that expressly denied any future plans for Whitaker to undergo future medical treatment when, in fact, Whitaker had already scheduled a surgery to have a disc removed and vertebrae in his spine fused.
Although Whitaker has characterized the court’s order as being “primarily founded” on the finding that Whitaker’s actions prevented Becker from obtaining a valid independent medical examination, it is clear that the court viewed this concern as an aggravating circumstance on top of and in addition to Whitaker’s misleading violation of the court’s order. We think an experienced trial judge could easily conclude that a surgery to remove a disc and fuse two vertebrae together would generate evidentiary problems for a defendant trying to prove that the plaintiff’s need for surgery really resulted from a preexisting condition—a degenerative disc disease.
Finally, it is little answer to say, as Whitaker does, that his dishonest act of saying in writing that no surgery was in the offing precisely at the moment surgery preparation was occurring should be discounted by his having told Becker’s insurance company’s claims representative seven months earlier that surgery was recommended but not yet planned.
Conclusion
Magistrate Bobay and Judge Felts acted within the range of their discretion in making it clear to counsel that this type of behavior is unacceptable. We affirm the trial court.
Dickson and David, JJ., concur.
Sullivan, J., dissents, believing the analysis and conclusion of the Court of Appeals in this case to have been correct.
Rucker, J., dissents.