634 P.2d 377 (Alaska 1981), 5577, Hawes Firearms Co. v. Edwards

Docket Nº:5577.
Citation:634 P.2d 377
Opinion Judge:MATTHEWS, Justice.
Party Name:HAWES FIREARMS COMPANY, a California Corporation; Martha F. Hawes, an individual; Hawes National Corporation; and Gemini Investment Corporation, Petitioners, v. Paul A. EDWARDS, Respondent.
Attorney:Edward A. Merdes, Merdes, Schaible, Staley & DeLisio, Inc., Anchorage, for petitioners. H. Bixler Whiting, Whiting & Rosie, Fairbanks, for respondent.
Judge Panel:Before RABINOWITZ, C. J., and CONNOR, BURKE, MATTHEWS and COMPTON, JJ.
Case Date:October 09, 1981
Court:Supreme Court of Alaska
 
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Page 377

634 P.2d 377 (Alaska 1981)

HAWES FIREARMS COMPANY, a California Corporation; Martha F.

Hawes, an individual; Hawes National Corporation;

and Gemini Investment Corporation, Petitioners,

v.

Paul A. EDWARDS, Respondent.

No. 5577.

Supreme Court of Alaska

October 9, 1981

Edward A. Merdes, Merdes, Schaible, Staley & DeLisio, Inc., Anchorage, for petitioners.

H. Bixler Whiting, Whiting & Rosie, Fairbanks, for respondent.

Before RABINOWITZ, C. J., and CONNOR, BURKE, MATTHEWS and COMPTON, JJ.

Page 378

OPINION

MATTHEWS, Justice.

Until recently, Hawes Firearms Company and Gemini Investment Corporation, respectively, imported and distributed handguns manufactured by J. P. Sauer & Sohn, a West German manufacturer. The handguns were sold in the United States exclusively under Hawes' name.

Respondent Paul A. Edwards was injured when a Hawes revolver accidently discharged. Edwards sued Hawes, Gemini, and others, 1 claiming that the handgun was defective.

In the course of pretrial discovery Edwards served Hawes with sixty-nine interrogatories pursuant to Alaska Civil Rule 33, and requested the production of various items pursuant to Alaska Civil Rule 34. The interrogatories and requests for production were served in April of 1979. Hawes answered some of the interrogatories and produced some of the material requested and objected to the remainder of the interrogatories and requests. On November 30, 1979, Edwards filed a Rule 37(a) motion for an order compelling discovery. This motion was granted on January 11, 1980. By the terms of the court's order, answers to certain designated interrogatories were to be made no later than February 21, 1980, and complete production was to be accomplished by that date.

On July 2, 1980, Edwards moved to strike Hawes' defenses pursuant to Civil Rule 37(b)(2)(C), claiming that Hawes had willfully failed to comply with the January 11 order. This motion was granted and the court entered an order striking the defenses of Hawes and requiring the trial, as to Hawes, to be conducted on the question of damages only.

Rule 37(b) sanctions are necessary for trial judges to enforce their discovery orders. "(T)he rule ... invests the trial judge with broad discretion as to the choice of sanction in a given situation." Oaks v. Rojcewicz, 409 P.2d 839, 844 (Alaska 1966). We will not set aside an ordered sanction unless we are convinced that the court below has exceeded that discretion. Id. Willfulness, in the sense of a conscious intent to impede discovery, and not mere delay, inability or good faith resistance, must be demonstrated before sanctions may be imposed. See Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095-96, 2 L.Ed.2d 1255, 1267 (1958); Continental Insurance Company v. Bayless & Roberts, Inc., 548 P.2d 398, 404 (Alaska 1976); Ketchikan Cold Storage Company v. State, 491 P.2d 143, 148 (Alaska 1971); Hart v. Wolff, 489 P.2d 114, 118 (Alaska 1971); Oaks v. Rojcewicz, 409 P.2d at 840. Non-compliance cannot be found to be willful where the information sought is not within the party's "possession, custody or control." See 4A Moore's Federal Practice, P 34.17 (2d ed. 1980).

In the present case the court implicitly, but unmistakably, found that Hawes had willfully failed to make discovery in many respects. 2 Our review of the record has not

Page 379

convinced us that this finding was erroneous or that the sanctions employed were an abuse of discretion. Accordingly, we affirm.

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