ELR Citation: ELR 20806
No(s). 88-1070 (1st Cir. Mar 26, 1990)

The court upholds the district court's determination that defendant's discovery misconduct in a drinking water contamination case did not result in substantial interference with the preparation and presentation of plaintiff's case. The district court found that defendant's failure to reveal the existence of an independent consultant's report on the transport of the chemicals comprised deliberate misconduct. The trial court properly concluded that while the report may have been marginally useful in establishing the transport of chemicals, there was no competent evidence that defendant disposed of the chemicals. The court also holds that the trial court's decision not to apply Rule 37 sanctions for the defendant's misconduct was not an abuse of discretion in light of plaintiff's Rule 11 misconduct. The forfeiture of penalties each side would have received from the other is a sufficient sanction.

[Another decision in this litigation is published at 16 ELR 20577.]

Counsel for Appellants
Charles R. Nesson, Jan Richard Schlichtmann
Schlichtmann, Conway, Crowley & Hugo
171 Milk St., Boston MA 02109
(617) 423-9777

Counsel for Appellee
Jerome P. Facher, James L. Quarles, Neil Jacobs, Richard L. Hoffman
Hale & Dorr
60 State St., Boston MA 02109
(617) 742-9100

Before TORRUELLA and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.