Jneid II Vindicated Award of Substantial Costs for Dilatory Production of Documents During Trial.
In our December 20, 2009 post, we explored Jneid v. Tripole, where our local Fourth District, Division 3 appellate court reversed as too severe issue/evidentiary sanctions essentially resulting in a “directed verdict” after defendant belatedly produced 17,000 pages of documents with computer embedded information during trial (even though the documents had been requested way before in the pretrial juncture of the case). However, the appellate court did indicate that costs, inclusive of attorney’s fees and expenses, could be considered by the lower court on remand. We bloggers predicted that this matter should settle, because these costs were likely to be very substantial in nature.
The matter apparently did not settle, but our prediction came true.
On remand, the trial judge awarded a little over $1 million to one attorney for fees and expenses resulting from the dilatory document production, which was just one of four remand orders (but the first to reach the appellate court for review). Defendant appealed.
Our local court, in a 3-0 panel decision by Acting Presiding Justice Rylaarsdam, affirmed in Jneid v. Novell, Inc. (Jneid II), Case No. G044491 (4th Dist., Div. 3 Sept. 23, 2011) (unpublished).
Although defendant only challenged expenses totaling about $195,000, many of the challenges could not be entertained because appellant did not provide an adequate appellate record–a cardinal transgression which we have discussed in many prior posts. Appellant’s argument that the trial court used too lengthy of a period for purposes of awarding sanctions was rebuffed, given that the appellate court had given the lower court discretion to determine the punishment “in connection with” the trial–allowing a wide berth of prerogative to the trial judge to decide what time period should be properly considered.