Discovery Violations Result In Judge Striking Defenses in DuPont’s Benlate Pesticide Litigation

Jan 26, 2011   

A recent decision in ongoing DuPont Benlate pesticide litigation in Miami-Dade County Circuit Court demonstrates the serious consequences that can arise from a partys deliberate attempt to conceal discoverable information. On January 20, 2011, Miami-Dade Circuit Court Judge Amy Steele Donner ordered DuPonts defenses struck as a sanction for discovery violations described by the Court as an “unconscionable scheme” which constituted a fraud on the court.

The sanctions stem from litigation, which began in 1992, between DuPont and five Miami-Dade County growers for crop damage from the use of Benlate, a pesticide produced by DuPont until 2001. The plaintiffs claimed that discovered documents revealed a near 20 year cover up by DuPont whereby DuPont misfiled and mislabeled documents in an effort to avoid their discovery obligations. The growers alleged that DuPont deposited tens of thousands of pages of documents into a document depository created by DuPont for the litigation but then subsequently removed those documents claiming they were not relevant to the case.

On March 17, 2010, Judge Donner issued an Order demanding DuPont immediately produce all documents it deemed unrelated to the case which it had previously removed from the document depository. In response, DuPont surrendered over 37,000 documents, though the plaintiffs claimed 67,000 more pages should be produced. On May 14, 2010, Judge Donner held a hearing to determine whether DuPonts actions were a violation of discovery rules but did not issue a ruling until January 20, 2011. In the Courts January 20, 2011 ruling, the Court found that DuPont purposefully “manipulated the [document] depository . . . in order to interfere with the plaintiffs ability to conduct discovery.” The Court went on to describe DuPonts actions as a “fraud on the court” designed to “restrict the plaintiffs ability to gather evidence to prove its claims.” As a result of DuPonts actions, Judge Donner struck DuPonts defenses and will conduct a trial on damages only.

In striking DuPonts defenses, Judge Donner relied upon Florida Rule of Civil Procedure 1.380 which governs sanctions for discovery violations. Pursuant to Fla. R. Civ. P 1.380(b)(2)(C), a trial court may enter an order striking out pleadings and defenses and render a default judgment against a disobedient party. However, the striking of pleadings and/or the entering of a default judgment is rare and considered “the most severe of al sanctions which should be employed only in extreme circumstances.” Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, 1290 (Fla. 4th DCA 2002). “A deliberate and contumacious disregard of the courts authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).

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