dissenting.
If we follow the recent Supreme Court guidelines in determining whether the “death penalty” sanction is proper, we should approve its imposition in this case. See Transamerica Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917-18 (Tex.1991).
In determining whether a sanction is “just”, the Court suggested two standards to be followed. First, there should be a direct relationship between the offensive conduct and the sanction imposed, meaning that the sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party. Second, “just” sanctions must not be excessive and a sanction imposed for discovery abuse should be no more severe than necessary. See Id. at 917. Discovery sanctions cannot be used to adjudicate the merits of a party’s claims or defenses unless a party’s hindrance of the discovery process justified a presumption that its claims or defenses lack merit. However, if a party refuses to produce material evidence, despite the imposition of lesser sanctions, the court may presume that an asserted claim or defense lacks merit and dispose of it. Id. at 918. (Emphasis added). Further, the court should not impose “death penalty” sanctions absent a party’s flagrant bad faith or counsel’s callous disregard for the responsibilities of discovery under the rules. See Id. at 918.
In this case, Pelt was noticed for a deposition with subpoena duces tecum requiring him to bring several documents, including canceled checks and deposit slips from the business account where the money in controversy had been deposited. He appeared for the deposition on October 22, 1990, without the requested documents. Neither he nor his counsel advised opposing counsel at that time that Relators routinely disposed of his canceled checks and deposit slips each month after he reconciled his bank statement. On November 20, the court heard Relators’ motion for protection and the plaintiffs’ motion to compel. It is important to note the court’s ruling set out in the order dated December 6, 1990, ordered the Relators to produce the requested items to the plaintiffs within 10 days and ordered him to pay $250 to plaintiffs’ counsel as a reasonable attorney’s fee for having to prepare and prosecute the motion to compel.
After plaintiffs’ counsel notified Rela-tors’ counsel by letter dated January 23, 1991, that none of the ordered documents had been received and further stating that a motion to strike pleadings would be filed if the documents were not received by January 28, Relators’ counsel delivered all the requested documents but the canceled checks and deposit slips on February 7 and paid the $250 fine. Note that neither Rela-tors nor their counsel advised plaintiffs’ counsel at that time that the canceled checks and deposit slips had been destroyed.
On April 28, two weeks before the trial was scheduled, plaintiffs’ counsel advised Relators by letter that discovery was still incomplete because of their failure to deliver the checks and deposit slips. The letter further advised that a motion to strike *220pleadings would be filed if the missing documents were not provided within ten days.
On April 25, plaintiffs agreed in a letter to move the trial setting to August 5 to allow time to complete the depositions of Relators. They stated in the letter their understanding that Relators were obtaining the missing items from the bank. On May 7, plaintiffs advised Relators that if documents were not delivered by May 14 that a motion to strike pleadings would be filed.
Finally, on May 10, Relators advised Plaintiffs that Pelt had not kept the canceled checks and deposit slips, but that Relators had obtained approval for the plaintiffs to obtain the same from the bank at plaintiffs’ expense, estimated to be from $3,000 to $5,000. Plaintiffs’ acknowledged receiving this information and advised Re-lators in a letter on May 15 that the burden was on Relators to produce the court-ordered documents.
On June 24, as an apparent last remedy, plaintiffs filed a motion for sanctions seeking to strike Relators' pleadings and to recover attorney’s fees. On June 26, Rela-tors responded with a motion for protection, which was aptly described by plaintiffs’ counsel as “a motion seeking protection from the court’s own order.”
Here, the court had already ruled on December 6, 1990, that the requested documents were material; however, in the hearing on motion for sanctions and Rela-tors’ motion for protection presided over by visiting judge, Honorable J.F. Clawson, Re-lators sought to argue that the checks and deposit slips were not relevant. The visiting judge was correct in advising Relators that the relevancy matter had already been litigated and was not before the court. In Pelt’s testimony at the hearing, he stated that “I throw away the checks ...” Even so, Relators made a final argument that the canceled checks and deposit slips were not discoverable because they were no longer under the "care, custody and control” of Relators, but were obtainable from the bank. The court responded to the effect that no one is obligated to keep canceled checks and deposit slips, but that it is probably prudent for business people to keep adequate records, especially in view of IRS requirements. The court further ruled that this argument was not timely, that it should have been raised at the November 20, 1990, hearing.
In ordering the Relators’ pleadings stricken, the court could have reasoned that the offensive conduct was caused directly by the Relators in destroying his canceled checks and deposit slips. The court could have also reasoned that Rela-tors were intentionally dilatory in not advising plaintiffs’ counsel of this fact when the other requested documents were delivered on February 7, 1991. After hearing Relators testify and watching the interaction of the Relator with his counsel, the court could have also reasoned that Rela-tors were intentionally attempting to abuse the discovery process, for it was the Rela-tors who destroyed the items sought to be discovered, not Relators’ counsel. In making its decision, the court could have concluded that Relators’ counsel was simply following his clients’ directives. Relators failed to advise the court at the hearing on the motion to compel on November 20, 1990, that Pelt had thrown away the canceled checks and deposit slips or at any of the other communications between the parties’ counsel until it was finally revealed on May 10, 1991, at which time Relators’ position was that plaintiffs could get the documents, but only at a cost of $3,000 to $5,000. From this conduct, the court could have found the Relators were acting in bad faith. Here, the court could have considered the precedent that would have been established if Relators’ position had been followed. All a party would have to do to avoid discovery would be to destroy the requested records and make it either impossible or too costly for the requesting party to obtain them.
Here, the court followed the Supreme Court’s guideline in that, before ordering the pleadings stricken, it had ordered lesser sanctions, which Relators had refused to follow, thereby availing the court of the presumption that the Relators’ pleadings *221lacked merit and could be stricken. See Id. at 918.
In Justice Gonzales’s concurring opinion in Transamerica, he states that “... trial judges should not be trigger happy. They should first issue orders compelling discovery.” This is exactly what occurred in this case, followed by the Relators’ continued refusal to comply with the order compelling discovery dated December 6, 1990, until finally the court had little other alternative than striking the pleadings. The choice of sanctions is left to the sound discretion of the trial court. Id. at 917. After considering the record in this case, along with the guidelines provided in the majority and concurring opinions in Trans-america, I cannot find that the court’s imposition of the “death penalty” was arbitrary or unreasonable, but to the contrary, it follows the rules and suggested guidelines and appears to be reasonable under the circumstances of this case.