On Tuesday the Mississippi Court of Appeals issued a controversial decision in City of Jackson v. Rhaly. Here is the Court’s opinion.


The case was a lawsuit against the City for flood damages after a creek overflowed because it was not properly maintained. In interrogatory responses the plaintiffs requested any standard operating procedures which govern the site of the incident. The City’s response was: none and that the City would supplement on receipt of further information. Sometime later, the City supplemented the response to identify a procedure without producing it. A week before the trial the plaintiff found the procedure in the clerk’s office while researching another case.

This all happened back in the early 2000’s before the current City Attorney or anyone working in his office worked in the office.

The plaintiff moved for a default judgment for discovery abuses and Hinds County Circuit Judge Swan Yerger granted the motion. Judge Yerger determined that the City’s actions were not willful and wacked them anyway due to their neglect. He awarded $149,872 in damages, $31,226 in attorney’s fees and $3,862 in expenses.

Court of Appeals Decision:

Judge Ishee wrote the Court’s 5–3 opinion. The Court cited the following factors to consider when determine whether a dismissal was justified. My commentary is in brackets:

  1. the failure to comply with the court’s order resulted from willfulness or bad faith; [factor clearly not met: there was no order and trial court found it was not willful];
  2. the deterrent value of Rule 37 cannot be substantially achieved through a less severe sanction; [factor not present];
  3. whether the other party’s preparation for trial was substantially prejudiced; [nothing in opinion suggested this factor was present; court of appeals said maybe-but decided that this factor does not have to be present]
  4. dismissal may be inappropriate when neglect caused by lawyer rather than client; [pretty obvious that it was the fault of the lawyers in prior administration].

The Court discussed these factors and determined that dismissal was appropriate.

Pieter Teeuwissen and Claire Hawkins represented the City. William Joseph Kerley and John Clark represented the plaintiffs.

Judge Irving dissented joined by Judges Griffis and Maxwell.

My Take:

Judge Yerger had a reputations as perhaps the most defense leaning trial judge in the state. Except when the City of Jackson was a defendant.

I was shocked by this decision. Early indications are that I was not alone in Jackson legal circles. These are not the facts where I would  expect to see a default judgment granted for discovery abuses. In fact, I wouldn’t even expect to see a motion filed.

There was no order violated and the plaintiff obtained the documents before trial. Also, the plaintiff did not articulate any real prejudice or move for a continuance. The fact that the plaintiff could have used the documents in depositions and “so forth” could have been handled by a continuance and more depositions at the City’s expense.

Parties producing documents shortly before a trial is not uncommon. Sometimes this appears to be gamesmanship. Other times, not. Most of the time, the attorney on the receiving end complains to the Court, but rarely is anything done. Honestly, I didn’t know that a default judgment was even possible for what happened here. I’m not condoning it. And I think that attorneys are getting more and more lax in responding to discovery and supplementing their responses. But I am very surprised by the result.

I will probably have more analysis of this opinion in a future post.  

  • Anderson

    Yah, I predict this one for cert. I could see sanctioning the city, requiring them to pay any costs for continuing the trial/reopening depositions arising from the late disclosure — which, on the facts, looks to’ve been really bad behavior by the city.
    But striking the answer? The MSSC just held two days later that the trial court need not consider lesser sanctions (bad holding IMHO), but still. Barring an internal e-mail where the city says “let’s hide this manual, bwah-ha-ha,” I think Yerger pulled the trigger too soon. (And this as someone who found the Irving dissent unpersuasive on the city’s fault.)

  • Old Lawyer

    This smacks of an unduly harsh sanction against the City for the general sloppiness of its legal department during a prior administrtion, when indifference to deadlines and apparent incompetence seemed rampant. Cert should be granted and remand should result, in this writer’s opinion.
    The City’s attorneys seem to have been only a little more “indifferent” than plaintiff’s counsel, who did not request the identified document for almost three years. That said, lawyers on both sides of the Bar need to be more attentive to discovery responses they provide and to those that are provided by their opponents.

  • Wow! That is quite a harsh result for those facts. My experience (and that of most attorneys I know here in Alabama) is more in line with the end of your post. We see attorneys being more and more lax in responding to discovery without any consequences at all. It is often difficult to get court action on a genuine discovery dispute. I will look forward to hearing more analysis from you on this opinion.

  • Tim

    I don’t disagree with any of you, but I sure was happy to see some teeth in sanctions for once. I a case right now where Court should slam the door on them, never seen anything like it.

  • Ian

    I hope the Supreme Court denies cert so I can start using this case re: discovery abuses – which is becoming more pervasive.