I concur in the result insofar as it upholds the sanctions imposed pursuant to Referee Higgs’s findings.
I dissent and would reverse the preclusion sanction on the special facts of this case where even the few documents originally not timely produced have been lodged pretrial for more than a year with the trial and appellate courts and accessible for all discovery purposes to Oak Industries, Inc. (OAK), for *232that period. Although available, these so-called “critical” records have languished unexamined by Oak’s attorneys, the trial court or the majority of this appellate panel, all of whom choose to rely on a conclusive presumption of prejudice for which there is no legal justification where the sought-after materials are available for examination and meaningful use at trial.
My disagreement with the majority is multibased. (1) On the facts of this case, I find the evidence-preclusion sanction to be punitive only, because a short delay of trial initially, and even now, will place Oak in the same trial preparation position it would have been had the late-produced documents been received earlier. (2) Further, I would follow case-precedent and hold the trial court abused its discretion in not modifying its sanction at the October reconsideration hearing based on the fact the final materials had been produced more than one month earlier. (3) In addition to the above concerns, I would reverse the sanction because it was imposed for Sauer’s failure to comply with a nonspecific order pursuant to general references in Oak’s motion to compel production, which are so vague as to deny Sauer sufficient notice to satisfy the procedural due process required to support a sanction which precludes having his case decided on the merits. (4) Next, both at the time the sanctions were imposed, and at the later reconsideration hearing, alternate sanctions were available to the trial court which would have provided full remedy to Oak for any delay in production, including expenses incurred, i.e., a trial delay and monetary sanctions. Neither Oak nor the trial court suggested either the judicial system or Oak would be prejudiced by a delay, nor that full compensatory monetary sanctions ordered would not be paid promptly. Moreover, those alternatives are still available should we remand. (5) Finally, these sanctions, if appropriate to punish misconduct (which I do not perceive in this record) cannot be justified to punish Sauer whose conduct is not even suspect. Thus, the concept alluded to by the majority, that a client must be deemed to stand in the “shoes” of his lawyer when the attorney fails to file or try an action within applicable statutes of limitation, has no application here. On those matters, the Legislature has stated a public policy barring stale filings or trials. These are matters as to which the trial court has no discretion and, in any event, the client is always in a position to monitor and/or change lawyers. There is no similar public policy declared in the discovery statutes and they have been interpreted consistently as requiring the trial court to exercise its discretion so as to not place the benefiting party in a better legal position than it would have been had discovery been timely. When the sanction punishes the client when a lawyer provides late discovery, it is not justified. In these matters, the statutes permit the lawyer to be sanctioned separately, and the sanction choice is not statutorily compelled, but discretionary.
*233Although the factual recitation in the majority analysis does not allow one to savor the frenetic pace of the voluminous discovery aspects to which all parties were subject once they stipulated to condense discovery efforts to the 90-day period preceding an expedited trial date obtained by Sauer over Oak’s objection, the record shows it required an Olympian effort to maintain.1 After 30 days, Sauer’s attorney (a sole, albeit able, advocate who was simultaneously engaged in other litigation) realized he was losing ground. However, relief was denied when the court refused his request for a later trial although the complaint had been on file only 18 months and the parties were diligently preparing for trial. This time, Oak objected to the continuance. Unable to obtain relief from the restrictive discovery schedule, Sauer’s attorney attempted to stay abreast of Oak’s paper tidal wave until the unfortunate denouement described by the majority.
I
There is no need to recite the number and extent of the voluminous items of discovery requested by Oak, its efforts to obtain them, the number produced by Sauer and whether the materials were forthcoming voluntarily or only after initial sanctions were imposed, the number of depositions taken and submitted to, or to count the documents produced before the preclusion sanction was imposed. Suffice to say, the preclusion sanction is founded solely on Sauer’s failure to timely produce his personal checkbooks and bank statements, items which on personal examination appear to add little evidentiary weight to the issue of whether Sauer failed to reasonably mitigate damages in this case. This is because Sauer had already provided voluminous personal business bank and associated records for his various postdischarge business endeavors and his real estate holdings.
Here, the record shows the trial court imposed this severe sanction only after it erroneously determined it must conclusively presume prejudice. However it did not even review the voluminous records already produced and the other discovery materials in Oak’s possession on the very issue in question, Sauer’s efforts to mitigate damages. The trial court then relied on this finding of prejudice to justify the severity of the sanction based on its unsupported conclusion there was no appropriate lesser remedy.
In any event, Oak now has had all the requested materials available to it, albeit belatedly, for a year. While it might have been prejudiced initially by the delay, and a presumption to that effect might not be unwarranted were it impossible or impractical to delay the commencement of trial, the validity *234of the trial court’s rationale, and that of the majority here, requires applying a conclusive presumption of prejudice even though the material was available for pretrial examination and use.2 The trial has now been delayed 12 months and no trial date has yet been scheduled. Oak does not suggest it would have been prejudiced had there been an initial two- or three-month continuance when these late documents were produced, or that even now it would be prejudiced should the preclusion sanction be vacated. Indeed, Oak has made no effort to examine the materials it deemed so material, during the many months they have been available for inspection. Whether they are relevant or irrelevant, helpful or not to Oak, they have been available for such utilization as it desired for 12 months.
One need not disagree with the trial court’s characterization of Sauer’s noncompliance as willful to hold that it erred in not imposing a lesser sanction, perhaps further monetary penalties, attorney’s fees and continuance of trial which would have eliminated any prejudice apparent from this record from the delay in producing the last few records. The trial court could have examined the 1982 calendar which was submitted and the other documents. I have done so and I believe the trial court, the majority of this court and Oak, would agree there is little, if anything, of value to Oak Industries on the issue of damages, had they done likewise. Even if some item contained therein is substantially material, a continuance of trial to allow Oak to explore any leads uncovered certainly would have prevented any prejudice.
II
A review of representative relevant cases supports a reversal. In Morgan v. Ransom (1979) 95 Cal.App.3d 664 [157 Cal.Rptr. 212], a court-ordered dismissal was set aside where there was no showing of prejudice to a party when the adverse litigant failed to comply with a discovery order. The court noted the dismissal was “punitive,” not “remedial,” and therefore was not authorized since it was only to punish the wickedness of the plaintiff’s noncompliance with the court order. In Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300 [10 Cal.Rptr. 377], the court stated the purpose of the Discovery Act is to further efficient disposition of cases on their merits, not to provide a weapon for avoidance of trial through forfeiture.
So also, in Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482 [202 Cal.Rptr. 227], the Court of Appeal set aside a sanction deeming *235attomey/client and attorney work product privileges waived as punitive and violative of the rule cited in Caryl Richards, Inc. v. Superior Court, supra, 188 Cal.App.2d 300. There again the appellate court held there was no showing of prejudice sufficient to justify such an onerous sanction.
Citing Motown Record Corp. v. Superior Court, supra, 155 Cal.App.3d 482, County of Eldorado v. Schneider (1986) 183 Cal.App.3d 732, 751 [228 Cal.Rptr. 531], held that section 2034 discovery sanctions must not put the prevailing party in a better position than if discovery had been obtained. If the court believes Sauer’s attorney is at fault, it may sanction the attorney by contempt, without depriving Sauer of a meaningful day in court. (Code Civ. Proc., § 2034, subd. (b)(2).)
In Caryl Richards, Inc. v. Superior Court, supra, 188 Cal.App.2d at page 305, the superior court was faulted for a sanction order “designed not to accomplish the purposes of discovery but designed to punish petitioner for its failure to disclose in detail its secret process.”
In Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877 [217 Cal.Rptr. 602], the Court of Appeal addressed the imposition of an issue preclusion sanction. There, plaintiff’s expert lost a conveyer belt drive shaft which had failed five months after being repaired by defendant corporation. When plaintiff sued the repairer, the inadvertent loss absolutely precluded defendant’s experts from examining the shaft to defend against the claim of negligent repair. To prevent a permanent “shafting” of the repairing corporation from its inability to examine the court ruled plaintiff could not present its own expert to testify as to the results of his earlier examination of the shaft. Puritan applied the general rule that “where a motion to compel had previously been granted, the sanctions should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” Because the loss of the shaft prevented defendant’s expert from examining that item, it both prevented meaningful cross-examination of plaintiff’s expert who had previously conducted such an examination and eliminated the possibility defendant could develop evidence in his defense by having its own expert examine the allegedly faulty material. Thus, the sanction of excluding the plaintiff’s expert testimony gleaned from examining the shaft served the remedial purpose of preventing plaintiff from achieving a tactical advantage to the prejudice of defendant. On the other hand, Puritan held the additionally imposed sanction preventing plaintiff from introducing photographs taken of the shaft and expert testimony based upon examining the photographs was improper. The court reasoned that if the photographs accurately depicted the material, they were accessible to defendant and available for examination by defendant’s own *236experts. By excluding the photographs and all interpretive testimony, the trial court’s sanction placed the repairing corporation in a better position than it would have been had the failed shaft been produced.
m
The majority denigrates Sauer’s lodging his personal bank records after the preclusion sanction had been imposed,3 as a mere ploy “to protect the record for purposes of taking this writ.” However, the notice of lodging filed in superior court on September 26, 1986, states: “To: Defendant and Its Attorney of Record [^Notice Is Hereby Given that the following exhibits have been lodged with Department 30 of the Superior Court (honorable Douglas R. Woodworth) and are available for inspection by the court and all counsel: [%]exhibit 4: The financial documents produced by plaintiff on September 3, 1986 at the hearing on defendant’s motions in limine and referred to by plaintiff’s counsel in the offer of proof. They consist primarily of plaintiff’s personal financial and banking records relative to his business ventures.
“Exhibit 5: The additional financial documents which plaintiff offered on September 3, 1986 to produce within 24 hours.[4] They consist .primarily of plaintiff’s personal financial and banking records that relate to his personal finances rather than his personal business ventures.
“Exhibit 6: A calendar which was discovered by Robert Rothman, plaintiff’s counsel, on September 18, 1986 . . . which may be the calendar to which defendant’s counsel refers. It should be noted that plaintiff is unable to confirm whether or not this is the calendar to which he referred in his deposition testimony of May 15, 1985.” (Italics added.)
Thus, it is apparent both Oak and the superior court were notified of the lodging and urged to inspect these documents more than a month before the October 29 reconsideration hearing. At calendar argument, Oak’s counsel conceded they have deliberately chosen to ignore the documents.5
At a reconsideration hearing on October 29, 1986, the court was again asked to inspect the documents lodged with it a month earlier. This request *237was consistent with the court’s statement at the time it issued its sanction order that Sauer’s attorney should have an opportunity on reconsideration to show the missing evidence was totally insubstantial or, even though it might be favorable to Oak, that it could not materially affect the outcome. However, by October 29, the court had apparently changed its position. This time the court stated the issue of prejudice to Oak, by virtue of noncompliance with its discovery orders, begged the question entirely. The court bottomed its denial on a conclusive presumption of prejudice because the material was not made available to Oak in compliance with the “four-corners” of the earlier discovery order. Thus the court and Oak were given the opportunity to review the documents for prejudice as the court earlier indicated it would do and, although the documents were in the possession of the court, they did not do so, relying on a conclusive presumption of prejudice to bar Sauer from proving economic losses from the discharge.
Assuming the willfulness and egregiousness of Sauer’s conduct (or that of his attorney, or both), there is no reason to apply a conclusive presumption of prejudice in a case where the requested materials are available for inspection and, by altering the trial schedule, can be fully utilized by defendant. There is even less reason to refuse to lift the preclusion sanction once the materials are produced in time for use at trial, even if those belatedly received items are critical (as they do not appear to be here) to the defendant. This issue was fully addressed in Fred Howland Co. v. Superior Court (1966) 244 Cal.App.2d 605 [53 Cal.Rptr. 341], where a superior court order denying the reconsideration and setting aside of a sanction was held to be an abuse of discretion. There, a notice of motion for reconsideration was accompanied by what appeared to be complete answers to interrogatories, the failure to answer which had been the basis for the earlier sanction. Howland cites Caryl Richards’ statement that one principal purpose of the Discovery Act is to enable a party to obtain evidence to further the efficient economical disposition of cases according to right and justice on the merits, not to provide a weapon to punish, to allow forfeiture or to avoid a trial on merits. (P. 610.) In Howland, a writ of mandate issued even though the court acknowledged the superior court properly found a lack of diligence which could be deemed “willful” in the sense the party understood its obligation, had the ability to comply and had failed to do so. It held the superior court had abused its discretion because the wrong done, at most, only delayed preparation of the case and caused additional legal efforts for which a monetary award would readily compensate the benefited party. That is precisely the situation here. In a similar vein, the court in Puritan Ins. Co. v. Superior Court, supra, 171 Cal.App.3d at page 885, stated that it assumed the superior court would withdraw its preclusion order were the shaft later produced.
*238We have been cited to no California case where the lifting of preclusion sanctions has been denied where the materials have been produced before trial and there is no showing of actual prejudice and no actual fraud on the court. In the absence of those factors here and no suggestion by Oak the documents available to it for the last 12 months are not sufficient to permit it to properly prepare to defend on the still-to-be-scheduled trial date of this action, the reasoning of Howland is compelling.6
IV
Moreover, the trial court was not trying to punish Sauer by the preclusion order. Its comments plainly show its concern was to remedy what it perceived to be the effect of the conclusive presumption of prejudice. However, it did not evaluate the mass of business and personal bank records already received by Oak to determine whether the degree of prejudice reasonably to be conclusively presumed by lack of access to the minimally material personal documents at issue, required this onerous sanction. Although it is clear the trial court only intended to impose a sanction tailored to prevent Sauer from achieving an advantage over Oak by virtue of its nonreceipt of documents according to the standards stated in the California decisions, on the present facts its sanction serves no remedial purpose and fulfills only an unintended punitive role.
Contrary to any perception that Sauer retains a meaningful opportunity at trial to litigate and recover damages for his emotional distress and punitive damages, Oak’s statement to the trial court shows it believes the order barring evidence of Sauer’s economic loss guts the damage claim for emotional distress, as well as his claim for pure economic loss of income. Further, there is always a tacit, if not required, proportional relationship between punitive damages and compensatory.
In arguing against reconsideration of the court’s preclusion sanction, Oak told the court that evidence of Sauer’s personal checkbooks and bank records are probative of his postdischarge income, an issue it characterized as central to Sauer’s claim of emotional distress as well as to mitigation of damages. However, the court never intended to preclude the emotional distress claim and did not believe its order had that effect, generally stating Sauer would still be able to proceed on the trial of pain suffering and humiliation, i.e., emotional distress. On this record, Oak’s perception of the *239greater effect of the imposed sanction is undeniably the more accurate. Sauer’s inability to introduce evidence his income was reduced and that he suffered other related economic loss by virtue of the firing, completely negates the likelihood a lay juror will find evidence to support any meaningful award for emotional distress. In a practical world, persons are conditioned by the rigors of daily life to understand and empathize with damage claims based on proved economic deprivations causing loss of income, loss of assets, fear of poverty and the like. Thus, it seems clear that a result the trial court did not intend is precisely the goal which Oak pursues and will achieve by the preclusion sanction.
V
Aside from the punitive nature of this sanction on a record where the evidence conclusively shows there is no evidentiary prejudice at all, there is a further reason why the sanction was improperly imposed.
California Rules of Court,7 rule 335, requires a motion to compel further production of documents be accompanied by a separate statement “which sets forth each . . . request ... as to which further answer is requested . . . and the factual and legal reasons for compelling it. Material shall not be incorporated by reference.” To the extent Oak’s motion to compel generally refers (and thus incorporates by reference) to Oak’s entire first and second request for production of documents, each containing multiple multisegmented demands and asking they be blanketedly complied with to the extent the documents have not already been produced, the motion and the order merely reiterating that general language fail to comply with rule 335. Those general references become all the more meaningless in light of the specific requests in Oak’s accompanying separate statement.
Oak’s separate statement to identify documents pursuant to rule 335 never specifically identified the documents involved in the sanction at issue. Even the majority must bootstrap by referring to the referee’s order of August 18 requiring Sauer to produce documents responsive to Oak’s formal document request (including request number 18 of its second request, relating to Sauer’s personal financial records).8 However, neither the motion to compel nor its accompanying specifications identify Sauer’s personal checkbook and bank statements as a subject of this motion. The separate statement included the nonspecific request for an order that Sauer “produce *240documents responsive to [Oak’s] First and Second Request for Production to the extent those documents had not already been produced.” In addition to this general request, Oak asked the court to order numerous specific documents be produced, including eight requests specifically relating to item number 18 of its second request for production. Each of these eight series of documents is cited as relevant to the issue of mitigation of damages, the same issue to which it now contends the late-produced documents relate. Those specified are identified as (1) Sauer’s American Express card receipts, (2) a file of certain personal receipts, files on properties owned other than “spec” home properties, (3) records of IRA accounts, (4) RB Electronics checkbook, (5) Sauer’s applications for property development in New Jersey, (6) sale documents on Crystal Lake property, (7) 1985 and, (8) 1986 documents regarding RB Electronics. All these designated items were produced. One would have to be clairvoyant to believe the court order issued in response to the motion to compel was directed to any other item potentially included in Oak’s request number 18 in light of the eight separate specifications set forth in the mandatory separate statement. A motion to compel framed in such general terms as “production to the extent those documents have not already been produced” does not comply with rule 335, nor does it satisfy the procedural due process required to permit sanctions for a disobedience to an order after a motion to compel.
Contrary to the majority’s statement, there is no significance to item 15 listed in the separate statement, which in turn refers to request number 13 in the second request for production of documents. This reference is, in turn, based on the reference to Sauer’s deposition where he testified as to documents he describes as “personal bank accounts, cancelled checks and loan documents kept in his inside ‘bank file.’” (Maj. opn. fn. 3.) Those references are to Sauer’s deposition pages 522, 525 and 1030, no part of which refers to the type of personal bank records at issue in the present sanction. All references are to records produced before the sanction was imposed.9
*241The majority expresses disbelief at Sauer’s attorney’s statement at the time the preclusion sanction was imposed he was not aware until the preceding day that his “personal financial records” were the subject of the order to compel. This, of course, takes the matter out of context. In this case, Sauer’s personal bank accounts and financial records were many and varied. Primarily, they consisted of separate bank accounts and sets of financial records devoted to various businesses or income-producing activities including his partnership activity in RB Electronics, a separate account for certain houses being built on speculation, another separate account and set of documents relating to income-producing property in New Jersey, statements relating to raw land real estate holdings and personal documentation of his IRA accounts. Each of these items had been identified in correspondence and to some extent in requests for answers to interrogatories and for production of documents. These were always referred to in relation to their relevance to Sauer’s attempts to mitigate damages. Nowhere is there any specific request for records of Sauer’s nonbusiness personal bank accounts. It is these accounts which were not produced before the hearing on the motion to compel. It is these nonbusiness personal accounts to which Sauer’s attorney refers.
The majority then states: “Sauer’s assertion he believed the order compelled production of his business financial records is unpersuasive. Because Sauer had already produced these documents, it is illogical to assume Oak would continue to insist on their production or bring a motion to compel.” (Maj. opn., p. 227.)This misconstrues the record. In fact, although the majority refers to the already produced documents as business records, they are in fact Sauer’s personal business accounts. Further, these had not all been turned over to Oak at the time the motion and order on the motion was made, but some were produced later. It is not illogical to assume the “personal” accounts requested by Oak consisted solely of those accounts which had been identified through various discovery techniques as involving income-producing activities in which Sauer was involved: those specifically referred to on several occasions by Oak and which were directly relevant to show whether Sauer had made good faith efforts to mitigate damages. When the motion for sanctions was made, only other personal checkbooks and bank statements had not yet been made available, along with the 1982 personal calendar which had not been found in spite of good faith efforts, a representation accepted by the trial court, and the handwritten notes made by Sauer when he reviewed his testimony in front of the SEC. (The SEC notes were made available and Oak does not claim prejudice from the delay in getting them.)
Thus, the sanction was based upon the failure to submit personal checkbooks and bank statements not specifically identified by, and which can *242only be engrafted into, the order on motion to compel by violating the policy and language of rule 335.
VI
It is understandable a court may wish to set an example when an attorney is perceived as abusing the discovery process, both to punish and to set an example which might deter others from a similar course. Code of Civil Procedure section 2034 permits the sanction of contempt in such cases. Certainly, five days in durance vile, where appropriate, seems sufficient to assuage judicial pique as well as to send a strong message to the bar. However, the California courts, unlike those in the federal system relied on by the majority here, are not to be used primarily to punish misconduct.
An analysis of applicable California law is contained in 21 Santa Clara L.Rev. 567 (1981). In an article entitled Curbing Discovery Abuse: Sanctions Under the Federal Rules of Civil Procedure and the California Code of Civil Procedure, Richard W. Sherwood compares the federal discovery statutes, primarily Federal Rules of Court, rule 37 with the discovery statutes of California, primarily set forth in Code of Civil Procedure section 2030 et seq., and in particular section 2034 relating to sanctions. He states California courts traditionally restrict sanctions to those tailored to remedy a failure to achieve discovery, not for punishment. (Id. at pp. 604-605.) On the other hand, the federal courts consistently permit sanctions designed to punish and deter. (For instance, see National Hockey League v. Met. Hockey Club (1976) 427 U.S. 639 [49 L.Ed.2d 747, 96 S.Ct. 2778].)10
Even were Sauer’s conduct deliberate and unreasonable (a conclusion I do not find supported by this record), the preclusion sanction places Oak in a better position than if it had timely received the belatedly produced documents and proceeded to trial bolstered by whatever evidentiary gains to be winnowed from their contents. While these final few documents are admittedly relevant to Oak’s pretrial discovery, they appear to be of little or no materiality to its defense of this case. If they are indeed material, Oak has had an entire year to inspect, decipher, analyze and digest their contents, and to pursue any unexplained leads revealed. That is four times the *243total timespan available to it had those items been produced at the beginning of the stipulated 90-day discovery program, and almost one year longer than if they were submitted at the end of that period. Oak’s ability to use those materials at the pending trial is not hampered where they are tendered. For that reason, the preclusion sanction here is solely punitive and not tailored to place Oak in the trial position it would have been had these last few documents been produced timely.
VII
Of equal concern is the fact the sanction here is doubly inappropriate because it punishes the client, not the attorney whose conduct the majority finds so reprehensible. Implied in the majority holding is that the client’s recourse is against his lawyer. There are several problems with this approach, the first of which is that it permits reviewing courts to rationalize results akin to that in this decision. A second, and more basic, is that it shifts responsibility away from tortfeasors for a reason completely unrelated to their culpability or their efforts to make amends for their malfeasance. A third factor is the impracticality of a malpractice action where it is not statutorily compelled; increasing, not decreasing, the burden on the courts and requiring the client to commence new litigation, to retain a new lawyer and to not only prove a right to recover against the long-departed tortfeasor, but also to convince a factfinder that actionable negligence has occurred. (We can only speculate that, at least occasionally, an innocent client’s remedy rights are shifted from a deep-pocket malefactor to a shallow-pocketed lawyer.) However, this case is in a more unique posture. Here, even if the client believed actionable malpractice had occurred, he is locked into the present litigation and must complete it before seeking other redress. His litigation burden is double what it would be had the sanction been the even more severe dismissal sought.
For all the above reasons, I would reverse the sanction order and remand to the trial court to permit it to impose such alternative sanctions it deems appropriate, other than issue or evidence preclusion or dismissal, and to schedule an appropriate trial date.
A petition for a rehearing was denied October 19, 1987. Work, J., was of the opinion that the petition should be granted. Petitioner’s application for review by the Supreme Court was denied December 16, 1987.
For example, in addition to interrogatories and document productions, multiple depositions were contemplated to be conducted in various cities. Fifty-three were noticed and twenty-seven actually taken in San Diego, Chicago, Dallas, San Francisco and Los Angeles.
Cases finding a conclusive presumption of prejudice are those where the untendered items are both facially material and are irrevocably unavailable. None apply a conclusive presumption where the items are only late-delivered.
Actually, some of these were tendered at the hearing when the sanction was imposed and, in any event all were lodged more than a month before the reconsideration hearing.
The failure to lodge these items within 24 hours of the offer is irrelevant given the fact the “offer” was rejected by the imposition of sanctions. Only had the sanction been conditioned on Sauer’s not making good on the offer would that fact be meaningful on this petition.
The majority suggests that late disclosure might not be prejudicial if the materials were wholly innocuous and not voluminous. A perusal of the documents in question shows they met both criteria.
Although the federal decisions permit discovery sanctions to be used to punish, contrary to the California precedent, it is noteworthy that in North Amer. Watch v. Princess Ermine Jewels (9th Cir. 1986) 786 F.2d 1447, 1451, relied on by the majority, the court found a party’s fraud on the court by lying about whether it had the ability to produce documents and a finding of actual prejudice justified dismissal.
All rule references are to the California Rules of Court unless otherwise specified.
That the majority is forced to trek through the entire first and second request to find possible references to unidentified documents which may not have been produced, shows the importance of a separate statement particularly identifying requested items. One should not need to be a cryptographer to avoid imposition of sanctions such as this.
On page 522, Sauer responded to questioning regarding the contents of a file cabinet which he searched for “responsive documents.” He stated it contained his newspaper clipping file, two folders relating to the construction of the two spec homes and some normal files he keeps there relating to bank accounts and cancelled checks. He identified these as files containing personal receipts and concerning property he owns, including the Crystal Lake property and Aurora land in New Jersey. These are precisely the type of bank accounts and bank and financial records relating to income and business properties which were produced and are not the documents which later became the subject of the motion for sanctions. Specifically, they included the RB Electronics checkbook which was turned over. Pages 1029 and 1030 relate to RB Electronics, late notices on certain real property payments, some real estate contract documents, etc. Thus, following these references to Sauer’s deposition show the separate statement request related to second request number 13 as limited to financial materials which were produced and not those in issue at the time of the sanctions.
The role of the court in this context has not changed under the new discovery rules effective July 1, 1987, Code of Civil Procedure sections 2016-2036. (See the special supplement to Cal. Civil Discovery Practice (Cont. Ed. Bar Dec. 1986), entitled A Guide to the New Civil Discovery Act: All You Need to Know and Do at p. 9, § 1.5.) The author describes the existing status as one in which California courts have sternly enjoined the use of discovery sanctions for punitive or coercive purposes. It is still the California rule that, in exercising discretion to impose sanctions for noncompliance with discovery orders, the sanction must be tailored to the dereliction and not exceed that necessary to protect the interest of the party entitled to, but denied, discovery. (Id. at p. 7, § 1.4.)