This came up during the Coca Cola exercise yesterday and is worth clarifying:
1) Some argued for Coca that the court should not default it because then Coca would be unable to comply--the case will be over. You need to think a bit more sharply about the purpose of sanctions. Yes, the court wants compliance. But it does not want compliance for the sake of compliance. It wants compliance so the litigation can proceed appropriately, with the Bottler receiving the information to which it is entitled in the litigation. The court imposes the sanction to ensure compliance; but if compliance will not happen, the sanction protects the litigation process and stops the disobedient party from interfering with that process. So the court will be perfectly happy if Coca defaults rather than complies because it gives the court what it wants--the litigation proceeds.
Put differently, the disobedient party cannot weaponize the desire to ensure compliance to mess up the litigation by not complying.
2) Same with the point someone made after class that a default means the case won't be resolved on the merits. Yes, the goal is resolution on the merits, where litigation functions as it should. But a party cannot interfere with the litigation, then complain about non-merits resolution. Compare a court issuing a default judgment under FRCP 55 if the defendant fails to answer--the defendant cannot avoid the default ("but then we will not resolve on the merits") by refusing to litigate.
2.5) For a real-world example of these points: See the reporting and commentary around the lawsuits by parents of the Sandy Hook shooting victims against Alex Jones. Jones refused to cooperate in discovery, the judge defaulted him on liability, then held trial on damages, awarding multi-millions in damages. Many argued that the court had violated the First Amendment by denying Jones the opportunity to raise (potentially valid) First Amendment defenses. But valid substantive defenses or rights do not allow you to ignore the rules of litigation. At some point (and the court was very patient), misbehavior within litigation leads to the loss of rights.
3) (b)(2)(A)(v) and (vi) are opposite sides of the coin--the disobedient party loses if it will not comply. (v) (dismissal) applies where the disobedient party brought the claim; (vi) (default) applies, as in our case, where the disobedient party is defending the claim.
4) See FRCP 37(a)(2)(C), which gives the court the option of imposing costs of the motion, including attorney's fees, in lieu of the listed (a)(2)(A) sanctions. So on the first go-round, a court could decide to impose costs, give the party additional time to comply, and see what happens. If it still does not comply, then an (a)(2)(A) sanction becomes appropriate. Again, it depends on the nature and blatantness of the disobedience.
