Larry Brown - Page 17

                                       - 17 -                                         
          party's failure to comply with a court's discovery orders.  In              
          interpreting and applying this Court's discovery rules, we                  
          normally look for guidance to court decisions interpreting their            
          counterparts in the FRCP.  See Rosenfeld v. Commissioner, 82 T.C.           
          105, 116-117, 120 (1984); Owens-Illinois, Inc. v. Commissioner,             
          76 T.C. 493, 495-496 (1981); Zaentz v. Commissioner, 73 T.C. 469,           
          473-474 (1979).                                                             
               Under FRCP 37(b)(2), once it has been shown that a party has           
          not complied with a court's discovery order, sanctions are                  
          appropriate.  Societe Internationale v. Rogers, 357 U.S. 197,               
          206-208 (1958).  However, inasmuch as dismissal is one of the               
          most severe sanctions available under FRCP 37(b)(2), it is                  
          reserved for the most egregious cases where a party's conduct               
          clearly warrants it.  See, e.g., Marshall v. Segona, 621 F.2d               
          763, 767-768 (5th Cir. 1980); Jones v. Louisiana State Bar                  
          Association, 602 F.2d 94, 97 (5th Cir. 1979); see also Dusha v.             
          Commissioner, supra at 605.                                                 
               In Societe Internationale v. Rogers, supra, the Supreme                
          Court construed FRCP 37(b)(2).  Because of due process concerns,            
          the Supreme Court held that dismissal was improper where the                
          party's failure to comply was "due to inability, and not to                 
          willfulness, bad faith, or any fault of * * * [the party]."  Id.            
          at 212.  However, if willfulness, bad faith, or other fault is              
          present, dismissal may be appropriate even though there has been            






Page:  Previous  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Next

Last modified: May 25, 2011