[No. 34630-3-II. Division Two. October 30, 2007.]
[1] Discovery — Failure To Disclose — Sanctions — Discretion of Court. The discovery rules afford trial courts broad discretion to sanction parties for discovery violations. [2] Discovery — Failure To Disclose — Sanctions — Review — Standard of Review. An appellate court reviews the sanctions imposed by a trial court for a discovery violation under an abuse of discretion standard that (1) gives the trial court wide latitude in determining appropriate sanctions, (2) reduces the trial court's reluctance to impose sanctions, and (3) recognizes that the trial court is in a better position to determine the issue. The trial court's sanction decision may be overturned if a clear showing is made that the trial court's discretion was manifestly unreasonable or was exercised on untenable grounds or for untenable reasons. A decision is untenable if it is based on unsupported facts or an incorrect legal standard, or if no reasonable person would adopt the same view as the trial court. [3] Discovery — Failure To Disclose — Sanctions — Basis — Court Rules. Under CR 37(d), a litigant may be sanctioned for failing to respond to interrogatories and requests for production and for providing evasive or misleading answers to interrogatories and requests for production. A litigant objecting to an interrogatory or request for production is not relieved of its obligation to respond unless the litigant has sought a protective order under CR 26(c). [4] Discovery — Failure To Disclose — Sanctions — Dismissal or Default — Test — In General. The entry of a default judgment against a defendant is not an appropriate sanction for a discovery violation unless (1) the defendant willfully violated the discovery rules, (2) the violation substantially prejudiced the plaintiff's ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction probably would have sufficed. [5] Discovery — Failure To Disclose — Willfulness — Test. A discovery violation is willful if it is made without reasonable excuse. [6] Discovery — Failure To Disclose — Sanctions — Dismissal or Default — Violation of Order or Rule — Willfulness — False or Evasive Responses to Requests for Production. A defendant's false or evasive responses to the plaintiff's requests for production indicates a willful violation of discovery rules. [7] Discovery — Violation of Rule — Findings of Fact — Review — Standard of Review. A finding of fact made by a trial court in support of a ruling that a party committed a discovery violation will not be disturbed by a reviewing court upon a challenge thereto if the finding is well reasoned and is supported by the record. It is the trial court's prerogative to decide which version of events is more credible. [8] Discovery — Protective Order — Necessity — In General. Under CR 37(d), a litigant who believes that a discovery request is too broad is obligated to obtain a protective order limiting discovery. A litigant who fails to obtain a protective order may not avoid its disclosure responsibility by debating the semantics of the request. [9] Discovery — Scope — Requested Information — Consumer Hotline Records. A product manufacturer's consumer hotline records are encompassed by a discovery request for "any and all documents, including but not limited to complaints, answers, police reports, photographs, depositions or other documents relating to complaints, notices, claims, lawsuits or incidents of alleged [mechanism] failure on [specified] products." [10] Discovery — Violation of Rule — Findings of Fact — Review — Harmless Error. Any error related to a finding of fact made by a trial court in support of a ruling that a party committed a discovery violation is harmless if the finding does not affect the validity of the trial court's conclusions of law. [11] Discovery — Failure To Disclose — Willfulness — What Constitutes — Failure To Disclose Without Authority. A trial court has sufficient grounds to conclude that a litigant willfully violated discovery rules where the litigant falsely responded to discovery requests and failed to disclose requested materials without first obtaining a protective order. [12] Judgment — Default Judgment — Status. Cases should be resolved on their merits rather than by default. [13] Judgment — Default Judgment — Validity — Just Result. In any particular case, whether a default judgment is appropriate depends on whether it is a just result. [14] Discovery — Failure To Disclose — Sanctions — Purposes. The purposes of discovery sanctions are to deter, punish, compensate, educate, and ensure that the wrongdoer does not profit from the wrong. [15] Discovery — Failure To Disclose — Sanctions — Severity — Least Severe Sanction — Consistency With Purposes of Discovery. In imposing a sanction for a discovery violation, a court should impose the least severe sanction that will adequately serve and not undermine the purposes of deterring further discovery violations, punishing the violation, compensating for the violation, educating the wrongdoer, and ensuring that the wrongdoer does not profit from the wrong. [16] Discovery — Failure To Disclose — Sanctions — Dismissal or Default — Violation of Order or Rule — Prejudice to Plaintiff — Factors. A plaintiff's ability to obtain a fair trial is not substantially prejudiced by a defendant's late discovery response if the plaintiff fails to produce sufficient evidence that the delay resulted in the irretrievable loss of information, caused formerly useful information to become stale, or seriously hindered the plaintiff's ability to conduct further investigation, when further investigation is likely to assist resolution of the case following a continuance and the imposition of other appropriate sanctions by the trial court. [17] Discovery — Failure To Disclose — Sanctions — Dismissal or Default — Violation of Order or Rule — Prejudice to Plaintiff — Plaintiff's Trial Strategy — Effect. While it is generally inappropriate to disrupt a plaintiff's trial preparation to accommodate a discovery violation, in determining whether a delay by the defendant in responding to a disclosure request is prejudicial to the plaintiff, a court must take into account the plaintiff's choice of strategy in pursuing discovery. [18] Discovery — Failure To Disclose — Sanctions — Dismissal or Default — Violation of Order or Rule — Less Severe Sanctions — Sufficiency — Effect. The entry of a default judgment in favor of a plaintiff as a sanction for a discovery violation by the defendant is inappropriate if lesser sanctions could adequately address the goals of encouraging good faith compliance with discovery requests and timely trial preparation. [19] Discovery — Failure To Disclose — Sanctions — Dismissal or Default — Violation of Order or Rule — Prejudice to Plaintiff — Necessity. The entry of a default judgment in favor of a plaintiff as a sanction for a discovery violation by the defendant is contrary to law if the plaintiff has not been substantially prejudiced by the violation. [20] Interest — Prejudgment Interest — Purpose. Prejudgment interest awards are based on the principle that a defendant who retains money owed to another should be charged interest on such amount. [21] Interest — Prejudgment Interest — Liquidated Claim — In General. Prejudgment interest is awardable on a claim if the claim is liquidated or readily determinable. [22] Interest — Prejudgment Interest — Liquidated Claim — What Constitutes. For purposes of awarding prejudgment interest, a claim is liquidated if the evidence furnishes data that, if believed, makes it possible to compute the amount of the claim with exactness, without reliance on opinion or discretion. [23] Interest — Prejudgment Interest — Review — Standard of Review. A trial court's ruling that prejudgment interest is awardable on a claim is reviewed for an abuse of discretion. [24] Interest — Prejudgment Interest — Liquidated Claim — Disputed Claim — Retrial on Question of Liability — Effect. An unchallenged verdict for damages on an unliquidated claim results in a liquidated claim for purposes of a subsequent retrial on the question of liability alone. Prejudgment interest may therefore be charged on the award from the date the verdict was returned if liability is determined upon retrial. [25] Torts — Joint Tortfeasors — Joint and Several Liability — Fault-Free Plaintiff — Default Judgment Against One Defendant — Effect. Under RCW 4.22.040, .050, and .070, a defendant in a multidefendant action against whom a fault-free plaintiff obtains a default judgment remains a litigant for purposes of determining any allocation of fault between liable defendants and remains subject to contribution actions by other defendants with whom there is joint and several liability. [26] Appeal — Review — Issues Involving Nonparty on Appeal. An appellate court may decline to consider an issue bearing on the rights of a party who is not a party on appeal. [27] Judges — Disqualification — Bias — Appearance of Bias — In General. Litigants are entitled to a judge who is and appears to be impartial. [28] Judges — Disqualification — Bias — Appearance of Bias — Supporting Evidence. Evidence of actual or perceived bias is required to support the disqualification of a judge based on an appearance of unfairness. BRIDGEWATER, J., dissents by separate opinion. Nature of Action: Action for damages for injuries sustained in a motor vehicle accident. The plaintiff alleged that the driver was negligent and that the vehicle was defectively designed. A judgment on a verdict in favor of the plaintiff was reversed in part by the Court of Appeals at 123 Wn. App. 306 (2004). The court held that the vehicle manufacturer was prejudiced by the trial court's failure to instruct the jury that certain expert testimony regarding a theory of liability had been stricken from the record. After the case was remanded to the trial court, the plaintiff's counsel sought to update discovery with further requests to the vehicle manufacturer and moved to compel production of additional documents two months before trial. In compliance with an order of the trial court, the manufacturer produced a large quantity of additional documents pertinent to the issues in the case with less than one month remaining before retrial was set to begin. The plaintiff did not request a continuance but moved for a default judgment against the manufacturer. The plaintiff claimed that the manufacturer (1) failed to comply with his request for production, (2) falsely answered his interrogatories, (3) willfully spoiled evidence of other similar incidents, and (4) failed to produce documents relating to rear impact crash tests. The plaintiff requested an evidentiary hearing on the motion and also moved to amend his complaint to add an allegation of failure to warn. Superior Court: The Superior Court for Clark County, No. 00-2-00553-2, Barbara D. Clark, J., on February 15, 2006, entered a default judgment in favor of the plaintiff against the vehicle manufacturer on the question of liability as a sanction for the defendant's violation of discovery rules. The court also ruled that the plaintiff was entitled to prejudgment interest on the damages award from the date the verdict was returned in the first trial. Court of Appeals: Holding that the default judgment was not warranted as a sanction for the discovery violation where the plaintiff was not prejudiced in his ability to retry his case but that, if liability is found following retrial, prejudgment interest on the damages awarded in the first trial will run from the date the verdict was returned in the first trial, the court reverses the default judgment and remands the case for further proceedings. Heather K. Cavanaugh- (of Miller Nash, LLP) and Michael B. King- (of Talmadge Law Group, PLLC), for appellants. Douglas F. Foley- (of Foley & Buxman, PLLC); Paul W. Whelan- (of Stritmatter Kessler Whelan Coluccio); Peter O'Neil-; Derek J. Vanderwood-; Alisa R. Brodkowitz- (of Brodkowitz Law); Charles K. Wiggins- and Kenneth W. Masters- (of Wiggins & Masters, PLLC); and Michael E. Withey- (of Law Offices of Michael Withey), for respondent. ¶1 VAN DEREN, A.C.J. — Hyundai Motor Company and Hyundai Motor America (collectively, Hyundai) appeal the trial court's default order of liability on Jesse Magana's personal injury claim due to Hyundai's willful discovery violations. It argues that the trial court erred (1) in finding that it willfully violated discovery orders, (2) by failing to consider lesser sanctions, and (3) by not requiring evidence of prejudice warranting the default sanction. It also challenges the trial court's award of interest from the date of the jury verdict on the underlying and unchallenged damages award. Finding no prejudice to Magana's ability to retry his case resulting from Hyundai's discovery violations, we reverse the default order and remand for trial; but we affirm the trial court's ruling that interest on damages runs from date of the verdict in the first trial if liability is found following retrial. FACTS I. BACKGROUND ¶2 "On February 15, 1997, Ricky Smith was driving a rented 1996 Hyundai Accent two-door hatchback." Magana v. Hyundai Motor Am., 123 Wn. App. 306, 309, 94 P.3d 987 (2004). Angela Smith and Magana were passengers. Magana, 123 Wn. App. at 309. To avoid an apparent collision with an oncoming truck, Ricky Smith jerked the steering wheel, causing the car to "yaw" and leave the road. Magana, 123 Wn. App. at 309. ¶3 The car hit at least two trees and the resulting centrifugal force caused it to spin violently. The force threw Magana out of the car's rear window, 50 to 100 feet away from where the car finally stopped. "Magana's resulting injuries left him a paraplegic; Ricky Smith suffered a concussion, and Angela Smith broke her leg, collarbone, and shoulder blade." Magana, 123 Wn. App. at 309. ¶4 On February 8, 2000, Magana sued Hyundai, the Smiths, and the truck driver and his wife. Clerk's Papers (CP) at 4-5. Magana alleged that the car in which he was riding contained a " 'defective design [that] was a proximate cause of [his] injuries and damages and that Ricky Smith's and Nylander's II. DISCOVERY—2000 TO 2001 ¶5 Before the first trial in this case, Magana served a request for production on Hyundai that sought: "copies of any and all documents including but not limited to complaints, answers, police reports, photographs, depositions or other documents relating to complaints, notices, claims, lawsuits or incidents of alleged seat back failure on Hyundai products for the years 1980 to present." CP at 2379. Hyundai responded in April 2000 that "there have been no personal injury or fatality lawsuits or claims in connection with or involving the seat or seat back of the Hyundai Accent model years 1995 to 1999." ¶6 But at the time Hyundai responded, there were at least three claims involving seat failure in 1995-1999 Accents. ¶7 Magana also served an interrogatory requesting that Hyundai identify all Hyundai vehicles using the same or a substantially similar front passenger seat as the 1996 Accent. CP at 2376, 2383. Hyundai responded that the 1995-1999 Accents used the same front passenger seat and no other Hyundai vehicle used the same or a substantially similar right front seat. CP at 2376, 2383. ¶8 Throughout discovery, Hyundai refused to answer Magana's requests as written, providing responses that reworded and limited the scope of the original request. CP at 2312, 2379, 2384-85. But at no time did Hyundai seek a protective order narrowing the scope of discovery, nor did Magana move to compel answers from Hyundai before the first trial. III. FIRST TRIAL ¶9 On June 3, 2002, trial commenced. CP at 315-16. Magana did not attempt to introduce any evidence of the 21 other similar incidents of aggressive or violent deployment of the passenger side airbag that Hyundai produced during discovery. Br. of Appellant at 22. Instead, "Magana's primary trial theory was that if the seat back had been more rigid, it would not have given way when subjected to the centrifugal forces that caused the car to go into a spin." Magana, 123 Wn. App. at 318. ¶10 But Magana's counsel also explored an alternative theory of liability—"the lack of an integrated seat belt design"—with one of his expert witnesses. Magana, 123 Wn. App. at 311-12. The trial court initially overruled Hyundai's objection to this line of questioning. Magana, 123 Wn. App. at 312. "Four days later, the trial court reconsidered its decision and ruled that it should have sustained Hyundai's objection to [the expert witness's] testimony about 'an alternative seat design' of an integrated seat belt." Magana, 123 Wn. App. at 312 (quoting 11 Report of Proceedings (RP) at 1666). The trial court did not inform the jury that the expert's testimony on this issue was not to be considered during deliberations. "In an apparent compromise effort, the court reaffirmed its ruling striking [the expert witness's] challenged testimony but declined to advise the jury of its actions because of concerns that an instruction [after the parties had rested] would highlight the evidence." Magana, 123 Wn. App. at 313. ¶11 "By a 10 to 2 vote, the jury returned a verdict in favor of Magana for over eight million dollars, attributing 60 percent of the fault to Hyundai and 40 percent to Ricky Smith." Magana, 123 Wn. App. at 313. And the jury also answered "Yes" to the following special verdict form question: " 'Did Defendant Hyundai supply a product that was not reasonably safe as designed?' " Magana, 123 Wn. App. at 313 (quoting CP at 552). IV. FIRST APPEAL ¶12 Hyundai appealed the trial court's decision not to instruct the jury about the expert's stricken testimony. Magana, 123 Wn. App. at 313. Ten jurors concluded that the vehicle was unreasonably unsafe; two jurors disagreed. We have no way of conclusively determining how many of the 10 relied on Magana's defective seat back theory and how many relied on [the expert's] broad and conclusory testimony that an integrated seat belt would have prevented Magana's ejection through the rear window. . . . Because one vote would have changed the outcome, the error in failing to advise the jury that the court had stricken [the expert's] seat belt evidence was neither trivial, formal, nor academic. Magana, 123 Wn. App. at 319. We remanded "for retrial [of] liability issues regarding the occupant restraint system." Magana, 123 Wn. App. at 319. V. 2005 DISCOVERY ISSUES FOLLOWING REMAND ¶13 On September 13, 2005, Magana's counsel wrote Hyundai "with regard to discovery requests that need to be updated." CP at 4032. He asked Hyundai to update its interrogatory response because it: seeks identification of Hyundai vehicles that use the same or substantially similar seat as the 1996 Hyundai. The response is that no other vehicles use a seat that is substantially similar. We have a recliner mechanism from another Hyundai vehicle that looks identical. It appears therefore that [Hyundai]'s response was not accurate. Please check and update as necessary. CP at 4032. ¶14 He also asked that Hyundai update its response to the request for production that: seeks documents relating to incidents of alleged seat back failure on Hyundai products. The response that I have is now more than 5 years old. Moreover, it is limited to the 1995-1996 Accent. For purposes of discovery, it should not be so limited, especially since it is clear that other Hyundai vehicles used the same recliner mechanism. Please check and update or amend the response as necessary. CP at 4032. ¶15 Counsel for both parties then exchanged a series of letters discussing the scope of Magana's requests. Hyundai agreed to provide information relating to alleged seat back failure in 1995-1999 Accents and 1992-1995 Elantras; however, Magana continued to request all seat back failure claims in Hyundai products for the year 1980 to present. CP at 4045-51. ¶16 On October 25, 2005, Hyundai supplemented its response to Magana's interrogatory by stating: The 1995-1999 model year Hyundai Accents used the same or substantially similar right front seat as the 1996 Hyundai Accent. No other Hyundai model automobile uses the same or substantially similar design for the right front seat as the 1996 Hyundai Accent. Although not specifically requested by this interrogatory, [Hyundai] further responds that the 1992-1995 model year Hyundai Elantras had a recliner on the right front seat that was substantially similar to the right front recliner on the 1996 Hyundai Accent. CP at 4067. Hyundai also supplemented its response to Magana's request for production: [Hyundai] objects to [the request for production] on the grounds it is overly broad and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving said objections, [Hyundai] will produce complaints and claims alleging a seat back failure with respect to the 1995-1999 model year Hyundai Accents and with respect to the 1992-1995 model year Hyundai Elantras. CP at 4063. ¶17 Hyundai then produced two documents relating to claims of alleged seat back failure: (1) a 2002 complaint, filed in California, in which plaintiffs claimed that they were injured in part by an allegedly defective 1999 Hyundai Accent front passenger seat and (2) a 2000 notice of claim letter, in which an attorney notified Hyundai that his client, a rear seat passenger in a 1995 Hyundai Elantra, was injured by an allegedly defective driver's seat. CP at 4054, 4057-60. Hyundai stated that other than Magana's claim, "these are the only seat-back failure claims relating to either the 1995-1999 Hyundai Accent or the 1992-1995 Hyundai Elantra." CP at 4053. ¶18 On October 27, 2005, Magana filed a motion to compel Hyundai "to produce documents relating to other incidents of injury caused by seatback failures as requested by plaintiff in Requests for Production served in the fall of 2000." CP at 787. As per the original request, Magana sought "copies of any and all documents, including but not limited to complaints, answers, police reports, photographs, depositions or other documents relating to complaints, notices, claims, lawsuits or incidents of alleged seat back failure on Hyundai products for the years 1980 to present." CP at 789 (boldface omitted). Hyundai opposed the motion, arguing that Magana's request was unduly burdensome and not reasonably calculated to lead to discovery of admissible evidence. CP at 909. On November 18, 2005, the trial court ordered Hyundai to produce "[p]olice [r]eports, [l]egal [c]laims, [c]onsumer [c]omplaints and [e]xpert [r]eports or [d]epositions and [e]xhibits and [p]hotographs thereto with respect to all consumer complaints and lawsuits involving allegations of seatback failure on all Hyundai vehicles with single recliner mechanisms regardless of incident date and regardless of model year." CP at 961-62. ¶19 On November 21, 2005, in compliance with the trial court's order, Hyundai produced numerous documents relating to legal claims and consumer complaints of seat failure. CP at 1027, 2353-54; Ex. 48, at unnumbered pp. 3-4. On December 1, 2005, Hyundai produced additional boxes of police reports, photographs, expert records, deposition transcripts, and the first set of records generated from a search of its consumer "hotline" database. CP at 1027. These documents included nine reports of seat failure involving 1995-1999 Accents. Exs. 5, 6, 9, 30, 36-40. ¶20 Thereafter, Magana complained, "With less than a month before trial it will be virtually impossible to effectively put together a proper case utilizing the other similar incidents material just produced by Hyundai." CP at 2350. Magana's experts stated that it would be "difficult, if not impossible," to prepare and use this material for the second trial on January 17, 2006. CP at 2666, 2670. ¶21 Instead of requesting a continuance, Magana moved for a default judgment against Hyundai on December 23, 2005. ¶22 Magana's counsel also declared that if Hyundai had produced these documents before the first trial, he would have (1) investigated the other similar incidents, (2) provided documents of these other similar incidents to his experts, and (3) conferred with his experts regarding the most important other similar incidents. CP at 2354. Furthermore, Magana's experts stated that these other similar incidents would have been "invaluable" and "useful" during the first trial. CP at 2665, 2669. Regarding prejudice to the upcoming trial, Magana argued that Hyundai's late production "puts an enormous and unfair burden on [him] during the last stages of trial preparation." CP at 2331. ¶23 On January 4, 2006, Magana requested an evidentiary hearing on his motion for sanctions. CP at 3171. Magana also filed a motion to amend his complaint to add a "failure to warn" allegation. CP at 4293. On January 6, Hyundai produced the last of the documents. Also on January 6, Hyundai responded that (1) the parties agreed in a July 2001 letter to relieve Hyundai of the obligation to produce any other similar incidents relating to seat back failure, (2) any conclusion about whether Magana would be prejudiced by its alleged failure to produce documents was "speculative and premature," and (3) Hyundai had truthfully answered the interrogatory. CP at 3214-15, 3246, 3251, 3267. In addition, Hyundai acknowledged that, because of mistakes, it failed to disclose documents relating to an earlier lawsuit (the Acevedo claim) ¶24 In granting Magana's request for an evidentiary hearing, the trial court stated: I do wish to comment that the Court will be focusing on the prejudice to Plaintiffs in this point in time with respect to the retrial of this case following remand by the Court of Appeals. The Court does not find it to be a very useful effort to go into what would amount to be speculation about the first trial or about the outcome of appeal of the case. Although what happened prior to the first trial is part of the overall evidence, when considering a request for sanction, the Court needs to consider the remedies available at this time, and the totality of the circumstances facing the Court. In other words, the Court will be focusing primarily on whether or not the—there has been prejudice to the Plaintiff in preparing for retrial, since the remand in the spring to summer of 2005. RP (Jan. 13, 2004) at 73. The court also denied Hyundai's request for a continuance of the trial date after Magana withdrew his motion to amend the complaint. RP (Jan. 13, 2006) at 62, 70. ¶25 Following the evidentiary hearing, the trial court found that: (1) Hyundai's claim that Magana agreed to forego discovery of other seatback failure incidents was not persuasive, (2) Hyundai falsely responded to the interrogatories and requests for production, and (3) Magana was severely prejudiced in preparing for a second trial. CP at 5316, 5322-23, 5331. As a sanction, the trial court granted Magana's request for a default judgment against Hyundai. RP (Jan. 20, 2006) at 32. ¶26 Hyundai appeals, urging us to vacate the default judgment and remand for a new trial before a different judge or, in the alternative, to remand for a sanctions hearing before a new judge with directions that a default judgment may not be entered on the basis of this record. Br. of Appellant at 100. ANALYSIS I. STANDARD OF REVIEW (2) Sanctions by Court in Which Action is Pending. If a party . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . . . (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party; . . . . In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. II. WILLFULNESS ¶30 Hyundai argues that the trial court erred in finding that it willfully violated the discovery rules. Br. of Appellant at 56. Specifically, Hyundai claims that the trial court erred when it found that: (1) the parties did not agree to relieve Hyundai of the obligation to produce any other similar incidents relating to seat back failure, (2) Hyundai's responses to the request for production were evasive and misleading, (3) Hyundai's answers to the interrogatory were evasive and misleading, (4) Hyundai's failure to produce the records of a single similar case was a discovery violation, and (5) a 2002 case against Hyundai established a " 'pattern of lack of compliance with discovery obligations.' " Br. of Appellant at 57, 60, 65, 67, 69 (quoting CP at 5319). A. Agreement To Limit Discovery ¶32 Hyundai argues that the trial court erred in entering finding of fact 35: Based upon this Court's review of all the available evidence, the Court finds Hyundai's claim of an agreement to take the [other similar] seat back [incident] issue "off the table" is not persuasive. The Court concludes there was no such agreement. Taking into account the false premises created by the defendants' initial discovery responses, the Court finds there was no abandonment by Plaintiff of the pursuit of discovery with respect to seat back failures at any time. The fact the plaintiff focused on certain discovery issues does not indicate in an affirmative manner that the plaintiff ever abandoned his request for obtaining evidence of other seat back failures. It would be unreasonable, and not supported by the totality of the evidence, to conclude Plaintiff abandoned the issue of seatback failure which was the central issue of the trial. CP at 5322-23. Mr. Austin states in his declaration (paragraph 20) that it was his "understanding" that Mr. O'Neil was no longer pursuing documents relating to seatback failures in his letter. But his declaration does not state that Mr. O'Neil and he had even discussed this "understanding", let alone that Mr. O'Neil had agreed to it. Moreover, the very next paragraph (21) in his declaration states that he had memorialized his "understanding" reached with Mr. O'Neil in his letter of July 11, 2001. This letter did not memorialize any such understanding; it is silent on whether any agreement or understanding (that Mr. O'Neil was no longer seeking documents related to seat back failures) was ever reached. Furthermore, Mr. O'Neil, in his declaration, flatly denied having reached any such agreement or understanding to forego discovery of seatback [failure incidents]. CP at 5322. We do not address these findings separately because they are subsumed by finding of fact 35. ¶33 Hyundai argues on appeal that counsel had a series of "meet and confer" conversations between April 2001 and July 2001, resulting in an agreement to relieve Hyundai of the obligation to produce any other similar incidents relating to seat back failure. Br. of Appellant at 58-59; CP at 5322-23. Magana's counsel disputed Hyundai's characterization of the state of discovery before the 2002 trial. CP at 4791. B. Meaning of "Claim" ¶36 But Magana's request broadly encompassed [A]ny and all documents, including but not limited to complaints, answers, police reports, photographs, depositions or other documents relating to complaints, notices, claims, lawsuits or incidents of alleged seat back failure on Hyundai products for the years 1980 to present. CP at 2379. If Hyundai believed the request was too broad, it was obligated to obtain a protective order limiting discovery. CR 37(d); Fisons, 122 Wn.2d at 354. Having failed to do so, Hyundai may not evade its responsibility to disclose the requested materials by debating the semantics of the request. ¶37 Under Hyundai's interpretation of Magana's request, we cannot conceive how Magana could have obtained the consumer hotline reports without specifically asking for them. See Fisons, 122 Wn.2d at 354 ("Having read the record herein, we cannot perceive of any request that could have been made to this drug company that would have produced the smoking gun documents."). Hyundai's response created a false impression that it was not aware of any similar incidents of seat failure in any of its products. The trial court, therefore, did not err in finding that Hyundai's response was false, evasive, and misleading. C. Substantial Similarity of Elantra Seats ¶38 Next, Hyundai argues that the trial court erred in finding that the Elantra seat was "identical" and "substantially similar" to the Accent seat. CP at 5317; ¶39 Hyundai contends that the finding is contrary to the evidence. But Magana's expert testified that seats in various Hyundai vehicles were similar in strength and design and contained nearly identical parts. CP at 785-86. The expert also stated that because the recliners were similar, incidents of seat failure involving other Hyundai models would be relevant and useful. CP at 786. Hyundai ultimately conceded that the 1992-1995 Elantra used the same recliner mechanism as the 1995-1999 Accent. CP at 4067-68. These facts are sufficient to establish substantial similarity between the seats and the findings are not erroneous. D. Findings of Fact 23, 27, 28, and 29 In Parks v. Hyundai Motor America, Inc., 258 Ga.App. 876, 575 S.E.2d 673 (Ga. Court of Appeals 2002), a case in which [Hyundai's counsel] represented Hyundai at the trial court, Hyundai's response to discovery requests was at issue. After the case was remanded by the appellate court, Hyundai produced 33 responsive [other similar incidents]. There is a similarity of circumstances of the Parks case and the case herein regarding production of [other similar incident] documents by Hyundai. CP at 5902. III. PREJUDICE ¶41 Hyundai further argues that the trial court erred in entering a default judgment when a fair trial was still possible. Br. of Appellant at 70. Here, the trial court's decision to impose sanctions depends on its finding that Magana suffered substantial prejudice in preparing for the second trial. CP at 5331. Because we conclude that finding is unfounded, we hold that the trial court abused its discretion in sanctioning Hyundai with a default judgment. ¶44 First, we note that on remand we limited retrial to the issue of liability without disturbing the jury's damages verdict. Magana, 123 Wn. App. at 319. Five months after our mandate issued, and only four months before the scheduled trial date, Magana requested that Hyundai update its original discovery responses. CP at 748, 4024, 4032-33. Magana also sought to amend his complaint to add additional claims against Hyundai. CP at 4293. We do not believe that Magana could have taken these actions without anticipating a trial date continuance. ¶45 In his motion for sanctions, Magana emphasized his need to investigate the newly-disclosed incidents for relevance, to conduct follow-up discovery, to submit the incidents for review by his experts, and to depose the parties involved, when only one month remained until the scheduled trial date. CP at 2331-35. But Magana has not demonstrated that he could not complete his inquiry into the incidents, only that he could not do so in the month remaining until trial. This does not demonstrate prejudice to his ability to obtain a fair trial when (1) he did not request additional discovery until shortly before trial, (2) the parties litigated the scope of permissible discovery, and (3) Hyundai timely produced documentation of other similar incidents in compliance with the court's order. But the rationale for entering an order threatening default to compel discovery does not apply to this case. Unlike the defendants in Associated Mortgage Investors, here Hyundai complied with the trial court's order to compel production. Moreover, the court in Associated Mortgage Investors did not apply the factors cited by the dissent in determining whether the plaintiff suffered prejudice, but only in considering whether an alternative sanction would have sufficed. 15 Wn. App. at 229. We, therefore, disagree that the factors cited by the dissent are relevant in assessing prejudice to Magana, noting that "the particular facts and circumstances of each case will determine whether the [trial court's] discretion has been abused." Associated Mortgage Investors, 15 Wn. App. at 229. ¶46 Hyundai further argues that Magana cannot establish prejudice without showing that the delay in production rendered the incidents "stale." Br. of Appellant at 75. We agree. ¶47 Effectively, Magana argues that he was prejudiced because he could not proceed to trial as planned in January 2006. We agree that it is generally inappropriate to disrupt a plaintiff's trial presentation to accommodate a discovery violation. Gammon v. Clark Equip. Co., 38 Wn. App. 274, 282, 686 P.2d 1102 (1984). But in determining whether a delay is prejudicial, we must take into account the plaintiff's choice of strategy in pursuing the case. [P]laintiff's counsel, as experienced as they are in these matters, had to know that when they failed to raise the issue [of supplementing Hyundai's discovery responses] in the Spring of 2005, and instead waited until the fall before addressing the matter, they were creating their own dilemma involving the pursuit of the [other similar incident] material on the one hand, and the ability to try the case as early as January of 2006. CP at 3255. ¶48 Lastly, the trial court found that a continuance would not benefit Magana, but would benefit Hyundai. CP at 5333. We disagree. The purpose of the trial process is to uncover the truth. State v. Thompson, 58 Wn.2d 598, 605, 364 P.2d 527 (1961). Allowing Magana to investigate the incidents of seat failure will shed light on whether Hyundai manufactured and sold a defective product. Thus, further investigation is likely to assist in resolving the merits of Magana's case. ¶49 We conclude that the record does not support the trial court's findings that the evidence was now "stale" and that a continuance would prejudice Magana's ability to try his case—only that he would be prejudiced in presenting his case in January. If he tries to find experts and they are unable to analyze the evidence and would have been able to analyze it if it had been provided earlier, then and only then could irrevocable prejudice be shown that may warrant the trial court's usurpation of the right to trial and directing a verdict in Magana's favor. ¶50 While we agree that Hyundai's discovery violations warrant sanctions, ¶51 Accordingly, we reverse the default judgment and remand for trial, subject to further discovery orders that allow adequate time to examine the additional information for relevance and admissibility and avoid prejudice to either party by further delay. IV. GRANT OF PREJUDGMENT INTEREST ¶52 Hyundai claims that the trial court erred in awarding Magana prejudgment interest dating back to the date of the verdict in the first trial. Br. of Appellant at 97-98. Claiming that Magana's counsel made an unreasonable argument during the first trial, Hyundai asserts that "[it] should not be penalized for successfully pursuing appellate relief from plain error invited by Magana's counsel." Br. of Appellant at 98. We disagree. ¶55 Here, there was no question that Magana's claim was liquidated when the jury in the first trial awarded Magana over eight million dollars. Magana, 123 Wn. App. at 313. Hyundai did not assign error to or challenge the damages award. Magana, 123 Wn. App. at 314. The second trial was limited to liability issues. Magana, 123 Wn. App. at 319. And the trial court was not required to exercise its discretion in calculating the claim for purposes of the default judgment. Thus, under Hadley, Magana was entitled to prejudgment interest dating back to the date of the verdict in the first trial. The court does not find an equitable basis for denial of interest as argued by Hyundai. Error found by the Court of Appeals which resulted in reversal was made by the trial court, and was not the result of unreasonable argument by plaintiff's counsel. In addition, the request for equity would be outweighed by the court's finding of willful and egregious discovery violations by Hyundai. CP at 6001. V. THE SMITHS ¶56 Next, Hyundai requests that we order the trial court to preclude the Smiths from taking part in the retrial on condition that it dismiss its cross-claim against them for contribution. Br. of Appellant at 99. ¶58 Under RCW 4.22.070(1)(b), VI. REMAND TO A NEW JUDGE ¶61 Hyundai presents several arguments supporting its claims that the trial court appeared partial. Br. of Appellant at 89-97. Magana challenges Hyundai's characterization of the trial court's statements and rulings. Br. of Resp't at 56-59. But Hyundai never sought to disqualify the trial court judge nor asked her to recuse herself. We think it prudent to allow the trial court to consider Hyundai's arguments in the first instance on remand. QUINN-BRINTNALL, J., concurs. ¶62 BRIDGEWATER, J. (dissenting) — The majority holds that the evidence does not support the trial court's finding that Magana was prejudiced by Hyundai's discovery violations in his ability to prepare for trial. Majority at 18. And therefore, the majority does not examine the appropriateness of the sanction. But I would agree not only that Hyundai's discovery violations were willful, but that Hyundai's discovery violations were prejudicial and that the default judgment was an appropriate sanction. Because I would affirm the default judgment, I respectfully disagree with the majority. ¶63 I nevertheless agree with the majority that the record must show three things: (1) the willfulness of the discovery violation; (2) the prejudice to the opposing party's ability to prepare for trial; and (3) whether a lesser sanction would have sufficed. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494-95, 933 P.2d 1036 (1997); Snedigar v. Hoddersen, 114 Wn.2d 153, 169, 786 P.2d 781 (1990); Smith v. Behr Process Corp., 113 Wn. App. 306, 325, 54 P.3d 665 (2002). And I agree with the majority that we should not disturb the trial court's decision absent a clear abuse of discretion. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006); Burnet, 131 Wn.2d at 494. ¶64 But an abuse of discretion occurs only when a decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Associated Mortgage Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223, 229, 548 P.2d 558, review denied, 87 Wn.2d 1006 (1976). The trial court's decision rests on "untenable grounds" or is based on "untenable reasons" if the trial court relies on unsupported facts or applies the wrong legal standard. ¶65 Here, where the trial court has weighed the evidence, our review is limited to examining whether the trial court's decision rests on tenable grounds, i.e., whether substantial evidence supports the findings of fact. ¶66 Thus, I disagree with the majority's conclusion that there is insufficient evidence to support the trial court's findings of fact that Hyundai's willful discovery violations prejudiced Magana's ability to prepare for trial. ¶67 The majority faults Magana for requesting that Hyundai update its original discovery responses five months after our mandate issued and only four months before the scheduled trial date. Majority at 515-16. While neither I nor the majority know why Magana took this action when he did, we do know that he took this action only after finding a similar-looking recliner mechanism from another Hyundai vehicle. Clerk's Papers (CP) at 4032-33. In fact, Magana notified Hyundai Motor America (HMA) that: Interrogatory No. 12 seeks identification of Hyundai vehicles that use the same or substantially similar seat as the 1996 Hyundai. The response is that no other vehicles use a seat that is substantially similar. We have a recliner mechanism from another Hyundai vehicle that looks identical. It appears therefore that HMA's response was not accurate. Please check and update as necessary. [Request for Production] no. 20 seeks documents relating to incidents of alleged seat back failure on Hyundai products. The response that I have is now more than 5 years old. Moreover, it is limited to the 1995-1996 Accent. For purposes of discovery, it should not be so limited, especially since it is clear that other Hyundai vehicles used the same recliner mechanism. Please check and update or amend the response as necessary. Clerk's Papers (CP) at 4032 (emphasis added). And Magana's counsel notified Hyundai Motor Company (HMC) that: Interrogatory No. 11 seeks identification of Hyundai vehicles that use the same or substantially similar seat as the 1996 Hyundai. The response is that no other vehicles use a seat that is substantially similar. We have a recliner mechanism from another Hyundai vehicle that looks identical. HMC's response is not accurate. Please check. [Request for Production] No. 20 seeks documents relating to incidents of alleged seat back failure on Hyundai products. The response that I have is now more than 5 years old. Moreover, it is limited to the 1995-1996 Accent. For purposes of discovery, it should not be so limited, especially since it is clear that other Hyundai vehicles used the same recliner mechanism. Please check and update or amend the response as necessary. CP at 4033 (emphasis added). ¶68 Ultimately, in response to Magana's requests, Hyundai produced two documents relating to claims of alleged seat back failure: (1) a 2002 complaint, filed in California, in which plaintiffs claimed that they were injured in part by an allegedly defective 1999 Hyundai Name Model Year Model 09/08/2000 Dowling 1995 Elantra 07/24/2002 Bobbitt 1999 Accent ¶69 But clearly, Hyundai's responses and answers to Magana's discovery requests were misleading, evasive, and incomplete. After all, in response to the trial court's order, Hyundai then produced numerous other documents relating to legal claims and consumer complaints. CP at 1027, 2354; Ex. 48. These documents are summarized as follows: Date Name Model Year Model Contini 1987 Excel 04/25/1988 Hogle 1988 Excel 05/04/1988 Mak 1987 Excel 12/05/1988 Reed 1987 Excel 06/03/1992 McElligatt 1990 Sonata 08/04/1992 Gowanny 1986 Excel 10/27/1993 Harris 1987 Excel 04/23/1994 Stewart 1989 Excel 04/25/1994 Zhang Ni 1988 Excel 04/28/1994 Guy 1990 Excel 05/19/1994 Vincent 1988 Excel 10/07/1995 Schiller 1989 Excel 11/08/1995 Enriquez 1989 Sonata 11/09/1995 Nunez 1992 Excel 11/21/1995 Miller 1989 Excel 12/18/1995 DeJesus 1994 Excel 06/03/1996 Chittick 1994 Excel 10/31/1996 Holcomb 1992 Excel 12/16/1996 Cain 1993 Scoupe 07/10/1997 Randall 1993 Sonata 09/04/1997 Salizar 1995 Accent 02/06/1998 Martinez 1995 Accent 03/09/1998 McQuary 1997 Accent 05/04/1999 Trudeau 1993 Sonata 04/29/2000 Urice 1994 Elantra 09/01/2000 Wagner 1999 Accent 12/18/2001 Pockrus 1999 Accent 01/19/2002 Powell 1999 Accent 12/10/2002 McKinney 1998 Sonata 06/28/2002 Whittiker 1996 Accent 04/16/2003 McDaniel 2000 Elantra 09/23/2003 Ironside 2000 Elantra 01/08/2004 Sanchez 2000 Elantra 06/09/2004 Harper 1999 Accent CP at 2354; Ex. 48. ¶70 Thus, the fault should lie with Hyundai, not Magana. Under CR 26(e)(2), Hyundai had the duty to fully disclose its documents. See Thompson v. King Feed & Nutrition Serv., Inc., 153 Wn.2d 447, 462, 105 P.3d 378 (2005); Seals v. Seals, 22 Wn. App. 652, 654, 590 P.2d 1301 (1979). After all, CR 26(e)(2)(A) requires a party who obtains information that a discovery response was incorrect when made to amend the response to reflect the correction. Thompson, 153 Wn.2d at 462; Seals, 22 Wn. App. at 654. And CR 26(e)(2)(B) requires a party who obtains information that a discovery response is no longer true to amend the response to reflect the truth. Thompson, 153 Wn.2d at 462; Seals, 22 Wn. App. at 654. Finally, under CR 26(e)(2)(B), "a failure to amend the response [may be] in substance a knowing concealment." ¶71 And if a party disagrees with the scope of production, or wishes not to respond, it must move for a protective order. Johnson v. Mermis, 91 Wn. App. 127, 133, 955 P.2d 826 (1998). It cannot withhold discoverable materials. Wash. State Physicians Inc. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 354, 858 P.2d 1054 (1993); Johnson, 91 Wn. App. at 133. A party's failure to comply with these rules may not be excused on grounds that the discovery sought is objectionable. CR 37(d); see also Johnson, 91 Wn. App. at 133-34. Under CR 37(a)(3), "an evasive or incomplete answer is to be treated as a failure to answer." (Emphasis added.) And under CR 37(d), "an evasive or misleading answer is to be treated as a failure to answer." (Emphasis added.) ¶72 Here, Hyundai never supplemented its responses, even though they were either incorrect when made or no longer true. And while the majority questions Magana's motives for requesting that Hyundai update its original discovery responses five months after our mandate issued and only four months before the scheduled trial date, majority at 515-16, our Supreme Court has stated the following rule: [W]here a party to an action, in clear and unambiguous terms under oath, asserts the existence or nonexistence of a fact whereof such party has knowledge, or in the ordinary course of affairs would be expected to have knowledge, the adverse party may rely on such statements and, in the exercise of reasonable diligence, is not required to look behind the statements. Kurtz v. Fels, 63 Wn.2d 871, 875, 389 P.2d 659 (1964); see also Seals, 22 Wn. App. at 656. Thus, we can hardly fault Magana for relying on Hyundai's unambiguous, albeit evasive and/or incomplete, responses from 2000 until 2005. The majority claims, "It was Magana's choice to pursue additional discovery shortly before trial." Majority at 23. But it was Hyundai's responsibility to timely answer and supplement its discovery answers. See Gammon v. Clark Equip. Co., 38 Wn. App. 274, 282, 686 P.2d 1102 (1984), aff'd, 104 Wn.2d 613, 707 P.2d 685 (1985). If Hyundai had fulfilled its responsibilities and duties under CR 26 and CR 37, even after our remand, the majority would not be questioning Magana's actions. ¶73 But in determining whether Magana was prejudiced by Hyundai's actions, the majority once again questions Magana's actions, stating, "[W]e must take into account the plaintiff's choice of strategy in pursuing the case. . . . It was Magana's choice to pursue additional discovery shortly before trial. . . . [I]t is unclear why he requested additional evidence if the time required to investigate would have substantially prejudiced his case." Majority at 22-19 (footnote omitted). ¶74 And again, the majority faults Magana when it should fault Hyundai. Hyundai failed to disclose its documents before the second trial. Hyundai failed to disclose its documents after Magana requested it to do so. And, even after the trial court's order, Hyundai failed to timely and fully disclose its documents. ¶75 Nevertheless, the majority still notes, "Hyundai complied with the trial court's order to compel production." Majority at 20 n.19. And the majority seems to imply that absent a failure to comply with a trial court's discovery order, sanctions against Hyundai are inappropriate. Majority at 20 n.19. But I note that Washington law is otherwise. ¶76 A discovery order as provided in CR 37(a) and (b) is not necessarily a prerequisite to enforcement of the sanctions in CR 37(d). See Pamelin Indus., Inc. v. Sheen-U.S.A., Inc., 95 Wn.2d 398, 401, 622 P.2d 1270 (1981). Our Supreme Court has summarized CR 37 as follows: Thus, it can be seen the rule provides two alternative sources of authority for granting sanctions under CR 37(b)(2). They are: (1) failure of a party to comply with an order entered pursuant to CR 37(a); and (2) failure of a party to respond to a request for discovery under CR 33 or CR 34. Pamelin, 95 Wn.2d at 401; see also Charter House Ins. Brokers, Ltd. v. N.H. Ins. Co., 667 F.2d 600, 604 (7th. Cir. 1981) (under Fed. R. Civ. P. 37(d), the court may impose sanctions directly, without first issuing an order to compel discovery); Robison v. Transamerica Ins. Co., 368 F.2d 37, 39 (10th Cir. 1966) (it is generally agreed that Fed R. Civ. P. 37(d) permits an immediate sanction against parties for their willful failure to respond to discovery requests). ¶77 While fair and reasoned resistance to discovery is not sanctionable, it is the misleading nature of Hyundai's responses that is contrary to the purposes of discovery and most damaging to the fairness of the litigation process. See Fisons, 122 Wn.2d at 346. And requiring Magana to disrupt his trial presentation to accommodate Hyundai would reward noncompliance. Gammon, 38 Wn. App. at 282. ¶78 In fact, in support of his motion for a default judgment, Magana argued: Obviously plaintiffs in this case have little time to develop the evidence that has been supplied to them just weeks before trial. There is little chance to obtain the available information from the injured people or from their attorneys. There is little time for experts in this case to do a thorough review of the accidents produced to date or data assembled by plaintiff's attorneys. There is no time to note up depositions of the injured parties. Indeed, the discovery cutoff in this case has already run—and ran just days after the initial documents were produced to plaintiff. All of this puts plaintiff at a serious and perhaps insurmountable disadvantage. CP at 2335. ¶79 This case is not one where Hyundai's evasive and/or incomplete answers affected only one or two issues on remand. On remand, the sole issue was whether Hyundai was liable for the allegedly defective occupant restraint system. Magana v. Hyundai Motor Am., 123 Wn. App. 306, 319, 94 P.3d 987 (2004). Thus, Magana's trial preparation necessarily centered around investigating the requested documents. ¶80 Hyundai even suggests that "there is a very good chance that most—perhaps all—of the OSI's at issue would not be admissible at trial." Br. of Appellant at 79. While Hyundai focuses on whether its discovery violations were material, i.e., will probably change the result of the trial, the trial court properly focused on whether Hyundai's discovery violations "substantially prejudiced the opponent's ability to prepare for trial." Burnet, 131 Wn.2d at 494; Roberson v. Perez, 123 Wn. App. 320, 336, 96 P.3d 420 (2004), review denied, 155 Wn.2d 1002 (2005). ¶81 It may very well be that timely and complete answers to Magana's interrogatories and requests for production would have made no difference. And it may very well be that effective investigation would have made no difference. But that is not for us to decide. "[I]t cannot be stated with certainty that all of this would have changed the result of the case. But, as said by the Supreme Court, a litigant who has engaged in misconduct is not entitled to 'the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent.' Minneapolis, St. Paul & [Sault Ste.] Marie Ry. Co. v. Moquin, [ ] 283 U.S. 520, 521-522, 51 S. Ct. 501, [ ] 75 L. Ed 1243 [(1931)]." Gammon, 38 Wn. App. at 282 (first alteration in original) (quoting Seaboldt v. Pa. R.R., 290 F.2d 296, 300 (3d Cir. 1961)). ¶82 In Behr, a case in which we found that the trial court properly entered a default judgment against a defendant for failing to disclose documents and information, we quoted with approval the trial court's explanation for finding that the plaintiffs were prejudiced: "I conclude that the discovery violations complained of suppressed evidence that was relevant, because it goes to the heart of the plaintiffs' claims, and it supports them. It's relevant in that it goes to the heart of the defenses raised by Behr, because it undermines them. The discovery violations here prevented the plaintiffs from doing what the law really allows them to do, and that's to follow up on leads from developed facts. They were off in one direction when they should have been working in another, and the only reason is they didn't know that the other existed. ". . . . "The evidence that has been discovered and the implications from that evidence that has been discovered in the last week or so is highly important. As I said, it bolsters the plaintiffs' case, it undermines positions that the defendant has taken, it suggests that the plaintiffs' problems may have a more particular cause, . . . it casts doubt on the discovery that has gone on before, it affects the work that the experts have done, at least the plaintiffs' experts. ". . . Perhaps nothing in the discovery of this case is as important as what was not disclosed." Behr, 113 Wn. App. at 325-26 (first and third alterations in original) (quoting Report of Proceedings (May 15, 2000) at 3, 5). ¶83 Here, I would similarly conclude that Hyundai's actions suppressed documents and information that were relevant, as they go to the heart of the issue on remand, i.e., whether Hyundai was liable for the allegedly defective occupant restraint system. Hyundai's actions have prevented Magana from " 'doing what the law really allows [him] to do, and that's to follow up on leads from developed facts.' " Behr, 113 Wn. App. at 325 (quoting Report of Proceedings (May 15, 2000) at 3, 5). Magana was " 'off in one direction when [he] should have been working in another [direction].' " Behr, 113 Wn. App. at 325 (quoting Report of Proceedings (May 15, 2000) at 3, 5). The documents potentially bolster Magana's case while potentially undermining Hyundai's case. " '[They] cast[ ] doubt on the discovery that has gone on before.' " Behr, 113 Wn. App. at 325 (quoting Report of Proceedings (May 15, 2000) at 3, 5). And, given the number of documents that were suppressed, " '[p]erhaps nothing in the discovery of this case is as important as what was not [initially] disclosed.' " Behr, 113 Wn. App. at 325 (quoting Report of Proceedings (May 15, 2000) at 3, 5). Finally, even if Magana were able to begin an investigation into these documents, it still does not alleviate the prejudice that Hyundai caused by withholding information that was relevant to Magana's theory of causation. ¶84 Nevertheless, the majority concludes that "further investigation is likely to assist in resolving the merits of Magana's case." Majority at 23. Thus, the majority faults the trial court for imposing a default judgment, suggesting that it should have imposed a continuance. Majority at 23-20. Essentially, the majority questions the trial court's discretion in imposing a default judgment. ¶85 But the question, of course, is not whether we would have dismissed the action; it is whether the trial court abused its discretion in so doing. Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976). It is proper to leave that determination to the trial court because it has " 'tasted the flavor' " of the litigation and is in the best position to make that determination. ¶86 While the trial court should impose the least severe sanction sufficient to serve the purpose of the particular sanction, Burnet, 131 Wn.2d at 494, 497-98, we should not require the trial court to sequentially impose lesser sanctions before imposing the ultimate sanction of dismissal. See Mallard's Pointe Condo. Ass'n v. L&L Investors Group, LLC, 859 N.E.2d 360, 364 (Ind. Ct. App. 2006). Instead, the sanction simply should be proportional to the nature of the discovery violation and the surrounding circumstances. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 695, 41 P.3d 1175 (2002). "[Burnet] establishes a gauge for determining disproportionate sanctions." Rivers, 145 Wn.2d at 695. ¶87 Here, the trial court noted that a continuance would be unfair to Magana and would not punish Hyundai. CP at 5333. The trial court explained: 69. Continuance. The second possible sanction, which was the sole sanction proposed by defendants, is a continuance. Sanctions for discovery violations are not intended to reward the party who has committed the violations. Defendant Hyundai has sought a continuance in this case previously, which has been denied by the Court. The motion for a continuance would not remedy the staleness of the evidence in question; it would not remedy the difficulty of the Court in addressing these issues; it would involve further substantial costs to the parties in terms of analyzing the evidence with respect to their experts; it would involve substantial duplication of effort which . . . previously had been done in preparation and re-preparation for this trial. A continuance would only exacerbate that situation. It would not benefit the plaintiff, it would benefit the defendant. Therefore, a continuance is not an appropriate remedy. CP at 5333. ¶88 Certainly, there is "a clear record of delay or contumacious conduct" by Hyundai. Durham v. Fla. E. Coast Ry., 385 F.2d 366, 368 (5th Cir. 1967). After all, the facts show that Hyundai's noncompliance was due to its callous disregard for Magana's discovery requests, not due to its inability to comply. And I agree with the trial court that granting a continuance is not an appropriate remedy. ¶89 Here, a continuance places the burden on Magana, the innocent party, who must prepare again for a lengthy trial. See Lampard v. Roth, 38 Wn. App. 198, 201, 684 P.2d 1353 (1984). "Such preparation is costly to the parties, risks the loss of much of the original trial preparation, and burdens the other litigants on the court's trial calendar." Lampard, 38 Wn. App. at 201. Thus, a continuance that would allow Magana to investigate the documents and information would hardly be a satisfactory resolution of the problem. Lampard, 38 Wn. App. at 201; see also Behr, 113 Wn. App. at 329-30. ¶90 Moreover, a continuance effectively rewards Hyundai's noncompliance by allowing it a further opportunity to investigate the documents and refine its own trial strategy. ¶91 Clearly, given the particular circumstances in this case, the trial court determined that a continuance would not deter, punish, or educate Hyundai. ¶92 Moreover, the trial court also considered imposing other lesser sanctions; but ultimately, it rejected each in favor of a default judgment. CP at 5332-35. The trial court explained why it did not impose a financial sanction as follows: 67. Monetary Fine. A monetary fine is a sanction considered by this Court. It would in some sense address the costs that have been incurred in connection with these proceedings regarding discovery violations and could serve the purposes of punishment and the other purposes of sanctions. It is very difficult to know what monetary amount would be appropriate in such case. Hyundai is a multi-billion dollar corporation. This is documented in Exhibit 23 to Peter O'Neil's declaration. 68. A monetary sanction would not in any way address the prejudice to the plaintiff or to the judicial system. Much of the OSI seat back failure evidence is irretrievable at this point, and there is no way that it can be adequately addressed by either the experts or by the Court or by a jury if it were to review it. A monetary fine would do nothing to serve the search for truth and justice, which is the purpose of this Court. The Court rejects this as an adequate sanction. CP at 5332-33. Essentially, the trial court found that a monetary fine would not rectify Hyundai's the wrong; instead, it would simply set a price on it. ¶93 And we have agreed that a financial sanction may not always be a sufficient sanction, considering the nature of the discovery violation and the surrounding circumstances. In Behr, we relied on the trial court's explanation that a financial sanction " 'punishes the defendant to some extent, but it doesn't determine the plaintiffs' damages. It doesn't do anything to resolve the reason the plaintiffs came to court in the first place.' " Behr, 113 Wn. App. at 329 (quoting Report of Proceedings (May 15, 2000) at 23); see also Gammon, 38 Wn. App. at 282 ("Far from insuring that a wrongdoer not profit from his wrong, minimal terms would simply encourage litigants to embrace tactics of evasion and delay."). ¶94 The trial court also explained why it did not impose other sanctions as follows: 70. Other Sanctions Short of Default. There are cases in which a number of other sanctions have been appropriate to the particular facts of the case. The Court ultimately determined that neither party was suggesting that other remedies would be particularly appropriate or workable in this case. . . . There are no counterclaims in this case and many issues, such as the allegation of contributory fault by plaintiff, were already decided and affirmed by the Court of Appeals. The Court has analyzed whether it might be appropriate to admit into evidence the OSIs in some manner or to admit some of them. Proceeding to trial as scheduled would be highly prejudiced by the admission of some or all of the evidence which has now been disclosed. It would be difficult to discuss this evidence. Plaintiff has not had the time to develop it; it cannot be developed as to many of the facts and circumstances involved in OSIs of seat back failures. Hyundai has asserted the defendant should have the opportunity to challenge those OSIs, to conduct discovery and, at the very least, to examine the facts of those OSIs, and to address this newly disclosed information. Ultimately both plaintiffs and defendants agreed that admitting OSI evidence without examination or challenge would not be a workable or appropriate remedy in this case. . . . It is therefore not an adequate or workable sanction. CP at 5333-34. ¶95 Again, I agree with the trial court that these other sanctions are not an appropriate remedy. ¶96 And even Hyundai's counsel argued against simply admitting into evidence all or some of the OSIs. RP (Jan. 19, 2006) at 87-88, 92. Hyundai's counsel argued, "Let's take this again. All OSIs go into evidence? All OSIs? Were there Rule 403 risks involved here? You're willing to let all of these in, . . . where they make no attempt to demonstrate—and we didn't hide these facts from them about, you know, engineering facts." RP (Jan. 19, 2006) at 87. Hyundai's counsel continued: Let's take their theory of the gold standard seriously. If this is the gold standard, you guarantee an unfair trial. You guarantee it. The risk of confusion isn't a risk any more. It's guaranteed. I don't see how they can be managed. . . . We don't get to challenge foundation or anything else. If that can't work, they say no defense cross-examination argument or ability to contradict OSI evidence or seat back test evidence. And they say the Court is to instruct the jury that Hyundai violated its discovery obligations by withholding OSI documents? Stop. What has that got to do with the gold standard? RP (Jan. 19, 2006) at 87-88. Finally, Hyundai's counsel clearly stated, "I think admitting this massive OSI evidence is a guarantee that the problems under Evidence Rule 403 are going to occur. It's tantamount to a default, Your Honor. Admitting all the OSI evidence is tantamount to a default. We might as well skip the trial." RP (Jan. 19, 2006) at 92. ¶97 Here, the trial court " 'tasted the flavor' " of the litigation and its decision not to impose these other sanctions is fully supported by the record. Burnet, 131 Wn.2d at 509 (Talmadge, J., dissenting) (internal quotations marks omitted) (quoting Watson, 64 Wn. App. at 896) ). "As the trial court properly set forth its reasons on the record and those reasons are neither unreasonable nor untenable, its decision to grant the default judgment was within its broad discretion." Behr, 113 Wn. App. at 330 (emphasis added). I note: Trial courts are on the front lines of our civil justice system, dealing with sometimes recalcitrant attorneys and the myriad considerations of prosecuting a case. The trial courts develop intimate knowledge of cases from such involvement and they should be permitted to manage the discovery process. We should not disturb such management unless the record indicates the trial court has clearly abused its discretion. Burnet, 131 Wn.2d at 512 (Talmadge, J., dissenting). ¶98 Furthermore, the Supreme Court has warned against substituting our judgment for that of the trial court: There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order. It is quite reasonable to conclude that a party who has been subjected to such an order will feel duly chastened, so that even though he succeeds in having the order reversed on appeal he will nonetheless comply promptly with future discovery orders of the district court. But here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. If the decision of the Court of Appeals remained undisturbed in this case, it might well be that these respondents would faithfully comply with all future discovery orders entered by the District Court in this case. But other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other district courts. Nat'l Hockey League, 427 U.S. at 642-43. ¶99 Finally, I note that: Too often, cases in which trial court judges exercise firm case management are reversed by this Court or other appellate courts. Unfortunately, the majority opinion sends the message to trial court judges that this Court gives only lip service to strong case management by trial judges. This Court should instead send a resounding message to trial courts, lawyers, and parties: we do not condone "obstreperous" conduct of counsel, we support firm case management by Washington's trial judges, and we will not permit litigation to languish forever in our courts. Burnet, 131 Wn. App. at 513 (Talmadge, J., dissenting). ¶100 Therefore, based on the egregious nature of Hyundai's willful and evasive tactics in responding to Magana's discovery requests, I would find that the trial court was well within its discretion to grant the default judgment. Thus, I would affirm the default judgment.Date