Finding DuPont committed ‘fraud on the court’ by discovery abuses, Florida state judge strikes pleadings, leaving giant exposed in high-stakes case

In a state where judges have no direct authority under court procedure rules to impose sanctions for e-discovery violations, as do federal judges, a state circuit court judge in Miami, inflamed by what she describes as a "fraud upon the court justifying the severest of all sanctions," has resorted to the equivalent of the judicial sanctions atomic bomb by leaving chemical giant DuPont defenseless in a never-ending, contentious suit.

An order by South Florida Circuit Judge Amy Steele Donner striking DuPont's pleadings means that whatever the 75^th-ranked Fortune 100 company has asserted as defenses, in motions and other court documents, are extinguished. They will form no part of the trial on the merits. It is as if DuPont never answered the complaint of numerous plant nurseries nearly 20 years ago alleging serious harm and damages to crops from use of the DuPont pesticide, Benlate.

The ruling by Donner effectively finds DuPont liable, and takes the case directly to a determination of the damages suffered by the plant nurseries.

Dupont’s scheme to conceal evidence was "unconscionable," court finds
The court’s extreme reaction was amply justified on the record she cited in her order, which says DuPont extracted and concealed 34,000 pages from a required disclosure and production in discovery. Donner, who has been hearing the case since 1997, found that many of the unproduced documents were "highly relevant" and concluded that DuPont was guilty of "a fraud on the court" by its "unconscionable" scheme to conceal relevant documents.

The judge also found that DuPont’s physical and electronic document collection procedures were "shams." The company had produced documents in 2005, but in 2010, after the advent of the e-discovery age, had removed 34,000 pages, asserting they were non-responsive or "had absolutely nothing do with Benlate." 

The court found differently, saying that their titles and dates made many of the documents "highly relevant."

DuPont database shrunk by 13,261 documents
Despite a court order requiring production of all the missing documents, DuPont’s production left many out that had previously been labeled for identification at depositions and other discovery. Further inspection found that over a two-year period the Benlate database had shrunk by 13,261 documents. 

Donner’s Jan. 19 order said this "manipulation" by DuPont had rendered the documents "unreliable and incomplete" and had "interfered with the ability of… plaintiffs... to participate in the discovery process."

Even without the damages the South Florida plaintiffs may be awarded, DuPont told the Securities and Exchange Commission in 2009 that it had already paid more than $2 billion in settlements and legal fees in the widespread Benlate litigation.

DuPont says ruling is "incorrect" and judge unfair
A statement by company spokesman Dan Turner said, “We are extremely disappointed in Judge Donner’s order granting the plaintiff's motion for sanctions. We strongly believe the ruling is incorrect and unfair. The Benlate document collection process set up by DuPont continues to meet and exceed the standards established by the court. Judge Donner's ruling confirms our concern that we have not been able to get a fair trial in her court. We will pursue our appeal of the order (after) the trial on damages.”

The attorney for the growers, Robert J. Ratiner of Ratiner Lagos & Mirabal in Miami, has been unavailable for comment. DuPont’s attorney in the Miami case, Bert Ocariz, of Shook Hardy & Bacon, declined comment.

Read the complete memorandum and order.