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Click here for the full text of this decision FACTS:Attorneys George Cire and Martha Adams and the law firm of Taylor & Cire (collectively “Cire”) represented Carla Cummings in a suit against Texas Utilities Fuel Co. The trial court entered an order compelling production by Cummings of audiotapes. The trial court found that Cummings filed evasive, incomplete answers and frivolous objections to discovery requests. The trial court also ordered that Cummings’ counsel pay $250 in attorney’s fees to Cire’s counsel. Cummings did not comply with the trial court’s order. At a sanctions hearing, the trial court determined that Cummings deliberately destroyed the audiotapes to avoid production, and, based on this determination, presumed that her actions prevented Cire from obtaining objective proof that they were not liable. The trial court granted the motion to strike the pleadings as a sanction for Cummings’ failure to comply with the discovery orders. The trial court found that less stringent sanctions would be “ineffective,” reasoning that because Cummings’s counsel never paid the $250 sanction for filing frivolous objections to discovery, monetary sanctions would not deter Cummings. The court of appeals reversed, holding that the trial court abused its discretion when it failed to consider alternative, lesser sanctions and when it did not explain why lesser sanctions would not suffice. HOLDING:The court reverses the court of appeals’ decision to set aside the death penalty sanctions imposed by the trial court, and renders judgment that Cummings take nothing against Cire. In light of GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725 (Tex. 1993), the court first decides whether the facts of this case make it one of the “exceptional” cases warranting death penalty sanctions. Second, the court determines whether the trial court’s discussion of lesser sanctions in its order complies with TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991), Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex. 1992), and GTE that the trial court consider the availability of less stringent sanctions, and in all but the most exceptional cases, actually test the lesser sanctions before striking the pleadings. The discussion in the trial court’s order goes beyond simply stating that lesser sanctions would not be effective; the order contains an extensive, reasoned explanation of the appropriateness of the sanction imposed, demonstrating that the trial court considered the availability of less stringent sanctions as the court has have required. Ordinarily, a trial court would also be required to test the effectiveness of lesser sanctions by actually implementing and ordering each sanction that would be appropriate to promote compliance with the trial court’s orders in the case. However, because of the egregious conduct and blatant disregard for the discovery process demonstrated here, including the violation of three court orders ordering production of the audiotapes, the court concludes that death penalty sanctions are clearly justified. This is an exceptional case where it is fully apparent and documented that no lesser sanctions would promote compliance with the discovery rules, and the trial court did not abuse its discretion in striking Cummings’ pleadings. The imposition of death penalty sanctions in this case was just and not excessive. The sanction was directed against Cummings, the offender, and remedied the prejudice caused to Cire when the trial court presumed evidence going to “the heart of the proof needed” to defend Cummings’ claims was destroyed. In a case of such egregious conduct, death penalty sanctions will secure compliance with discovery rules, deter other litigants from destruction of dispositive evidence, and punish Cummings. A spoliation instruction may be given when a party has deliberately destroyed relevant evidence. In this case, although the trial court could have instructed a jury that Cummings deliberately destroyed the audiotapes after they were ordered to be produced in discovery because they would have been unfavorable to her claims, Cire would still have to prepare for and attend a trial, despite a justified presumption that Cummings’ claims were meritless. Thus, the trial court did not abuse its discretion by choosing instead to strike Cummings’ pleadings. Sanctions are used to punish those who violate the discovery rules, and this is an exceptional case where the only objective evidence that would have supported or disproved Cummings’ claims was deliberately destroyed after the trial court thrice ordered it produced. Such intentionally egregious behavior warrants a harsher sanction. Given the extent and severity of the discovery abuses committed by Cummings, this is an “exceptional” case as contemplated in GTE where death penalty sanctions are justified. In her cross-petition, Cummings urges that the trial court was required to hold an “oral hearing” as a matter of due process before ruling on the motion to compel and ordering $250 to be paid to Cire’s attorneys as a sanction. Texas Rule of Civil Procedure 215.3, which authorizes a trial court to impose sanctions, does require “notice and hearing” before sanctions are imposed. However, nothing in the rule indicates that this must be an “oral hearing.” OPINION:Schneider, J.; delivered the opinion of the court.

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