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Donald Trump is appealing a contempt of court verdict.  It’s an accusation that more people should come to terms with.

Donald Trump made a familiar decision on Wednesday: He appealed a court ruling. This time it was a contempt of court verdict. Two days earlier, a New York state judge, Arthur Engoron, had ruled that Trump had failed to comply with a subpoena from the office of New York Attorney General Letitia James as part of his civilian investigation into the Trump Organization’s business practices. Engoron ordered Trump to respond to the subpoena request for documents requested by the AG and imposed a fine of $10,000 a day until he complied to the satisfaction of the court.

I love it.

I love him for reasons that have nothing to do with politics, taxes or even Trump himself. I like this because in civil cases I have observed that clients are rarely caught, let alone punished, for avoiding subpoenas or claiming to be unable to find the documents they are supposed to disclose in part of the discovery process. Discovery takes place before a case goes to trial, and both parties are expected to voluntarily share records with each other. When subpoenaed, a party must search their records and disclose the documents requested by the subpoena.

This is not a case of Trump exceptionally bending the rules. This is a case where Trump is exceptionally called out for what he has done.

Yet I’ve seen parties get away with sending their lawyer to court to say, “Well, the client says he looked for these documents, but…” and then inserting a number of vague and largely unverifiable, like something about a flood destroying the files (I’ve literally heard that) or a dog eating them (OK, I haven’t heard that yet). I have observed litigants exceeding discovery deadlines and, in some cases, I have suspected that they were outright concealing documents. They probably do it because they expect to get away with it. Hey, the other side has no idea what’s in their files, so why not just say they looked and didn’t have it.

Trump, it seems, is trying to do the same. Of course, Trump’s team argued that they fully complied with the subpoena. They insisted they conducted a diligent search, but Trump did not have what they asked for.

And it could all be true. But the problem is that no one but Trump and those close to him know for sure. Even his own lawyers can’t know for sure that their client isn’t hiding documents, especially when dealing with a client who notoriously doesn’t leave much of an electronic trail. So the attorney general turned to the judge to argue that Trump’s team, rather than simply not possessing documents, was in fact filibustering.

The judge ruled on her side, saying the claim Trump’s attorney made about the search for the documents was “woefully inadequate.” He said this “provided the Court with no basis to conclude that the search was thorough or that it was conducted in good faith to provide these necessary documents”.

This is not a case of Trump exceptionally bending the rules. This is a case where Trump is exceptionally called out for what he has done.

The problem is not with the court rules of discovery, which are far-reaching. The problem is that the rules are rarely enforced. In the courts of the State of New York, a party (like Trump)”to have to…full[ly] divulges[e] any important and necessary matter in the prosecution or defense of a lawsuit. The disclosure requirement is equally broad in federal courts: “parties may obtain communication regarding any non-privileged matter that is relevant to any party’s claim or defense…” Even if the information is not admissible as evidence in court, a party may still be required to disclose it. if it’s relevant.

As liberal as the discovery rules are, the rules don’t mean much if the other party doesn’t know they’re being broken. Only the side with the documents — in this case, Trump — really knows what they have, what they lost, and what they never had in the first place. And that’s the crack in the armor of the discovery system.

This is where the contempt power comes in or should come in. Like most jurisdictions, New York courts have the ability to punish with a fine, or even imprisonment, violations of court orders to comply with subpoenas. But while the court has the power to compel discovery, it is rarely invoked by lawyers in the dark.

Trump, however, faces a lawyer ready to seek punishment if she thinks something is hidden. The judge agreed with his assessment. And not only that. The $10,000 daily fine he imposed is fantastic. In my experience, the court tells the aggrieved party to submit the hours their lawyers billed and the fees wasted trying to get discovery on the contempt side, so the court can calculate the sentence. Awesome. More work for the party that was harmed in the first place.

It would be better if the judge simply adopted the standard applied in the Trump case: a fine of $10,000 a day. If only that happened more often in civil litigation, and not just when the New York attorney general faces off against a former president.


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