Back in early May, the Utah Court of Appeals handed down one of its messy procedural decisions, this time concerning final pre-trial disclosures. In Moa v. Edwards, the trial court excluded certain witnesses because they had not been timely disclosed. The witnesses were intended as either treating physicians or expert witnesses. Moa appealed on grounds that there was no finding of willfulness or bad faith. The Court of Appeals affirmed the trial court (on this and some other issue). Moa made her disclosure after the cut-off for witness identifications, both fact or lay witnesses and experts.
I see no problem with affirmance on the issue. The deadlines are not that stringent really. In general, I think the courts in Utah take too lax an attitude toward the rules of civil procedure, creating a good deal of avoidable motion work and uncertainty, and driving up costs of litigation. Here, the Court of Appeals has a relatively simple task, made easier by the plaintiff. Moa did not challenge the trial court's order on excluding the witnesses, so the argument that bad faith or willful violation are necessary findings for such an order was not preserved. And Moa did not provide a transcript, so there is no way to determine what went on during oral argument. Fine -- isn't the case over at this point? The Court can certainly affirm without more. It doesn't, and not stopping creates issues that could have been left quiet.
In the discussion of the failure to preserve the issue, the Court characterizes the absence of a finding of bad faith or willfulness as an error: "the trail court was ot provided a chance to correct that error." Okay -- was it an error? The rest of the opinion casts some doubt, because the Court spends a good of time explaining why there is plenty of evidence to support finding bad faith or willful violation. I suppose the point of that discussion is to make clear that the conduct was bad. But what happens is that the discussion appears to say -- albeit in dictum -- that a trial court may not impose a discovery sanction of this sort without a finding of bad faith or willful violation, but that it can impose the 'sanction' for missing a deadline. That is a surprise. As the Supreme Court appears set on adopting the proposed new rules of civil discovery, which impose a host of very short deadlines, this case will give grounds for some draconian enforcement.