St. Mary's Law Journal


Creative sanctions are necessary to deter litigants from abusing the discovery process. Under both the Federal Rules of Civil Procedure and the Texas Rules of Civil Procedure, creative sanctions are allowed and within a judge’s discretion. Federal Rule of Civil Procedure 37 and Texas Rule of Civil Procedure 215 provide judges a non-exhaustive list of available sanctions to deter abusive discovery practices. Nonetheless, discovery abuse has continued to escalate, and limited precedence exists in the field despite the increased use of sanctions. An unprecedented creative sanction was imposed by Judge Brotman of the District Court for the Virgin Islands. On appeal, however, the Third Circuit reversed the district court’s creative sanction imposing a $1 million contribution to the construction of a halfway house. Braden v. South Main Bank currently stands as the only Texas case on record in which a judge successfully imposed a creative sanction for discovery abuse. In Braden, the Texas Supreme Court upheld the trial court’s sanction requiring two attorneys to perform ten hours of community service. The Court ruled that a sanction will be upheld so long as it is enforced following litigation, is “just,” and there is a relationship between the offensive conduct and the sanction imposed. Based on the Texas Supreme Court’s holding in Braden, the Court should adopt Rule 215.7 which proposes to include creative sanctions such as completion of community service, mandating additional hours of continuing legal education, paying a monetary sum to a third party not directly involved with the present litigation, and requiring the abusive party to fund the creation of a legal education program on ethics and professionalism. Creative sanctions, not limited to the above, are essential to achieve the goals of compliance, deterrence, and punishment.


St. Mary's University School of Law