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Discovery responses almost ‘comical’

A discovery fight provoked strong language from an Alexandria U.S. District Court last week.

Denise Montanile offered to sell vintage baseball cards on her Web site. Tom Botticelli thought he was buying six cards of early baseball stars for the $7,800 he sent to Montanile, but all he got was an empty UPS box. Montanile refused to make good on the sale, or refund Botticelli’s money, and he went to the police. After Virginia charges against Montanile were dropped, she sued for malicious prosecution. Botticelli counterclaimed for fraud and consumer protection violations.

Then Montanile decided to stonewall, according to U.S. District Judge James Cacheris, by giving incomplete and inaccurate discovery responses and refusing to cooperate at deposition.

A frustrated magistrate judge wanted to dismiss Montanile’s suit. He said that while he did not “get to use the word ‘obdurate’ very often,” that word best characterized Montanile’s approach to court orders and the federal discovery rules.

Cacheris agreed sanctions were in order, in light of Montanile’s “almost comically incomplete discovery responses.” For instance, she was unable to recall details about the annual revenue of her company, other customer complaints or any previous litigation. When Botticelli’s lawyer searched court records in Montanile’s home county, he discovered she had been a party to more than 45 civil lawsuits and had been arrested several times.

In his July 28 opinion in Montanile v. Botticelli, Cacheris endorsed an alternative recommendation to bar Montanile from testifying at trial of the claim or the counterclaim, which effectively terminated her malicious prosecution action. The court granted summary judgment for Botticelli on his counterclaims, and said damages could be set by a jury.

Deborah Elkins

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