Discovery Deviousness leads to Dismissal

By Doug Chalgian on March 18, 2023

Share This Post with Friends


Although, In Re Gregory Hall Trust is a published decision arising out of trust litigation, the case is really about discovery sanctions. [Click on the name to read the case.]

The Set Up

Greg creates a trust leaving everything equally to his three children.

Subsequently, Greg takes his house out of trust and transfers it to one of the children, Ken.  When Greg dies, the other two kids say that Ken’s share of the trust has to be reduced by the value of the house.  Ken says the house was a gift and he still gets his third of the residue.

Litigation includes extension discovery involving electronically stored information (what the rules now call ESI).  Ken and his spouse appear to engage in conduct intentionally obstructive, throwing away old cell phones and making stored computer data difficult or impossible to retrieve.

The Trial Court

Th Trial Court decides the case on the merits, holding that the house transfer was intended to be an advance, and also rules against Ken on the more tenuous proposition that an excel spreadsheet found on Greg’s computer could be recognized as a trust amendment.  In addition, the Trial Court dismisses Ken’s case as a sanction for his egregious behavior vis a vis ESI discovery.


The Court of Appeals agrees with the trial judge that dismissal of Ken’s case was merited by his devious conduct in regards to discovery.  The COA notes that the missing ESI, and specifically electronic communications that presumably went back and forth between Ken and Greg around the time that the house was conveyed, may well have provided the best evidence of the parties’ understandings and intentions.

Because the COA affirms the trial court’s dismissal of the case as a discovery sanction, it does not review the lower court’s decision on the advancement/amendment theory.

Take Away

Credit to our friend Liz Luckenbach for her excellent work, and for reminding/teaching us of the critical importance that ESI now plays in all such matters.


Share This Post with Friends
mm By: Doug Chalgian
Doug Chalgian

Leave a Reply

Your email address will not be published. Required fields are marked *

Follow Plan To Be 100

Sign up to follow Plan To Be 100 and get notification of new posts!