Deleting a defense is an extreme sanction in the case of Violation of a judicial order or legal provision, but it is important to know that this is a possible outcome. מטרתה של סנקציה זו היא לגרום לבעל הדין לפעול בהתאם ל"כללי המשחק" המקובלים ולא לנסות לסרבל את ההליכים, לבזבז זמן שיפוטי ולפגוע בבעל הדין שכנגד.
Sometimes the person who is actually responsible for the failure to comply with the discovery procedures is the lawyer representing the client, who either knowingly ignored a judicial decision or was simply negligent in his work. In such circumstances, deleting a defense may (rightly) lead to the filing of a Lawsuit against a lawyer Alleging negligence on his part, and causing damage to the client.
Deletion of a defense – what is the legal source?
Procedures Document disclosure They are very important preliminary procedures within the framework of any Financial claim or Civil lawsuit. מטרתם של הליכי גילוי המסמכים היא לאפשר לצדדים לקיים הליך שיפוטי ב"קלפים פתוחים". בעל דין שאינו מעוניין לחשוף מסמך כלשהו הרלוונטי להליך פוגע באפשרות בית המשפט להכריע בסוגיה בצורה הוגנת, ופוגע בבעל הדין שכנגד שייתכן ולא יוכל להוכיח את טענותיו ללא אותו מסמך.
For this very reason, the Civil Procedure Regulations, which came into effect in 2021, stipulate the following in Regulation 60:
(a) Proper discovery and review procedures constitute a basic condition for the existence of a proper and fair judicial process; if the court is of the opinion that a litigant has not properly fulfilled his obligation under this chapter, it may immediately order him to pay costs. And in special cases, even delete his written statement of claims.
(c) Without derogating from the provisions of subregulation (a), a party who fails to disclose a document that must be disclosed or who fails to comply with a request to examine a document that he has disclosed, shall not be entitled to submit the document as evidence on his behalf in that action, except with the permission of the court after it has become apparent that the party had reasonable justification for his failure, And if it is a document that is detrimental to the party's case, the court may order the deletion of the statement of claim or the statement of defense, As the case may be, and if he has not so ordered, he shall order that he be charged with costs unless he finds special reasons not to do so.
Please note – Regulation 60 of the Civil Procedure Regulations allows for deletion Defense עקב אי קיום הליכי גילוי מסמכים, אך קובעת במפורש שהדבר יעשה רק "במקרים מיוחדים" או אם המסמך שלא גולה הוא מסמך שמזיק לאותו בעל דין שהסתיר אותו.
In the vast majority of cases, instead of striking out a defense due to failure to follow document discovery procedures, the court will prefer to charge the party who concealed the document or documents a fee. Legal expensesSometimes, in addition to legal expenses for the benefit of the opposing party, the court orders the payment of legal expenses for the benefit of the state treasury. The amount of legal expenses may be significant.
Court ruling regarding deletion of a defense due to failure to comply with document disclosure procedures
Below is an example of a decision regarding the deletion of a defense due to non-disclosure of documents:
ת"א 17512-10-21 אברהם גבריאל ואח' נ' החברה להתחדשות נתניה תמ"א 38 בע"מ
בקשת התובעים למחיקת כתב הגנתה של הנתבעת 9 –החברה להתחדשות נתניה תמ"א 38 בע"מ, וזאת בשל הפרת צווים מפורשים שניתנו ועניינם גילוי מסמכים ספציפיים.
In the body of the motion, the plaintiffs claimed that the defendant repeatedly violated clear orders issued regarding the disclosure of specific documents, even though they were given varying lengths of time.
Among other things, the plaintiffs claimed that during July 2023, and following previous violations of judicial orders, Defendant 9 transferred a stack of documents, which does not comply with the requirement for disclosure of specific documents, and this is also contrary to the notice that was submitted to the court file on July 12, 2023.
בעקבות פניית ב"כ התובעים לב"כ הנתבעת 9 התברר, בדיעבד, כי אין בכוונת הנתבעת לגלות את כל המסמכים וזאת מטעמים של העדר רלוונטיות, סודיות מסחרית, השלכות הגילוי על צדדים שלישיים וכיוצא באלו.
According to the plaintiffs, this is an explicit violation of orders that were issued, and it is capable of thwarting the possibility of conducting a fair legal process.
In its response, Defendant 9 argued that the motion should be dismissed, with the plaintiffs being ordered to pay costs for abuse of court proceedings. Defendant 9 argued that it provided the plaintiffs with the specific affidavit of disclosure of documents, as well as the relevant requested documents whose disclosure was requested, while the documents that were not sent were not relevant or protected by confidentiality.
According to Defendant 9, the fact that the plaintiffs claim the necessity of the documents is not sufficient to justify their production, and in any case, the plaintiffs received the documents as part of other legal proceedings underway between the parties.
Defendant 9 added and referred to the sections of the demand for disclosure of specific documents, with respect to some of them it was claimed that what was stated in them was unclear, another part was excluded from the framework of the procedure that is relevant to the disclosures, and some were not relevant to the current procedure.
After the defendant's response was filed, the plaintiffs' motion for a decision was filed, and within the framework of this motion, the plaintiffs' response to the defendant's response was found. Where there is no longer a procedure for responding to the response, except with the express approval of the court, I do not find it appropriate to address the substance of the claims within the framework of this notice.
After reviewing the application and response, and in light of the importance and implications of the various applications submitted in this case and dealing with the preliminary proceedings, the applications on these issues, as well as my responses and decisions, I find it appropriate to set forth and detail them as follows:
On November 3, 2022, the plaintiffs' list of requests was submitted, which included, among other things, a demand for the disclosure of specific documents, which was determined to be discussed at the hearing.
On December 13, 2022, the plaintiffs' motion for discovery and inspection orders was filed. This motion was forwarded to the defendants for response, who chose not to respond.
On January 5, 2023, a first request to delete the pleadings. In my decision of January 5, 2023, it was determined that the defendants would explain why the pleadings would not be deleted, in light of the plaintiffs' claims.
On January 11, 2023, the defendant's response was submitted, in which it was argued, among other things, that the request for disclosure of specific documents was premature, was submitted without an accompanying affidavit, and without specific instructions being given regarding the implementation of the discovery and review procedures.
On January 24, 2023, a decision was issued, within the framework of which reference was made to the manner in which the general discovery and review procedures would be implemented, within 20 days, and including the manner in which the documents would be found. Defendant 9, as usual, did not comply with this decision.
On February 23, 2023, another motion was filed by the plaintiffs to strike out Defendant 9's defense, due to the lack of disclosure of certain documents. This motion was also forwarded to Defendant 9 for response, which did not file its response.
On March 6, 2023 – a decision was issued on the response of other defendants, in which it was clarified, among other things, that even where a specific order for the disclosure of specific documents has not been issued, this does not prevent a request for this disclosure and that the plaintiffs will further clarify whether they stand by this demand, as well as providing the defendants with the opportunity to submit their response to that demand, In its absence, the defendants will be deemed to have given their consent to the specific disclosure.
On March 9, 2023, the plaintiffs filed another motion, which was primarily about the conduct of Defendant 9, and in which it was claimed that as of that date, no evidence had yet been found. General Document Disclosure Affidavit (In accordance with previous decisions) or an affidavit and copies of the specific documents for which disclosure is requested. Given the attempt at conciliation between the parties that took place at the time, no decision was made on the merits of the request.
On April 16, 2023, the plaintiffs' motion to strike out the defense briefs was filed, inter alia, with respect to Defendant 9, a case where she had no documents, whether general or specific, and she did not even find it appropriate to file a response to previous motions that had been filed. On that day, a decision was issued in which Defendant 9 was asked to clarify why her defense brief would not be struck out.
On April 18, 2023, the defendant's response was filed, to which a general document disclosure affidavit was allegedly attached, while it was claimed that the affidavit had not been filed by that date due to human error, health circumstances, and the need to meet with the declarant. No reference was found in that response to the issue of disclosure of the specific documents. On the same day, a decision was issued that speaks for itself, and within its framework, reference was made to the unreasonableness of the defendant's conduct 9.
On April 20, 2023, an additional notice was filed on behalf of Defendant 9, to which a general document disclosure affidavit was attached. However, and contrary to clear and explicit decisions, copies of the documents were not attached, they were not numbered, and in any case, the reference to the relevant section was not included in the affidavit. Therefore, a clarification was requested, which was filed on April 23, 2023.
On April 23, 2023, an additional request was filed on behalf of the plaintiffs, in which the plaintiffs confirmed that the general document disclosure affidavits had been received. However, it was clarified by the plaintiffs that the 9th defendant did not disclose the specific documents, and did not submit any reservations to the demand. This request was also accompanied, once again, by a copy of the demand for disclosure of specific documents.
On April 24, 2023 A decision was issued in which an order was issued ordering the 9th defendant to disclose all of the specific documents whose disclosure was requested, within ten days.
On May 7, 2023 – An additional request was submitted by the plaintiffs to delete Defendant 9's defense brief, where Defendant 9 chose not to comply with my decision of April 24, 2023. In relation to this request, Defendant 9's response was requested.
After that date, a conciliation process took place between the parties, which unfortunately was unsuccessful, but during the process, no decision was made on the plaintiffs' request and an extension was even granted to carry out the same discovery.
On July 12, 2023, Defendant 9 filed a notice stating that it had produced the specific documents in accordance with the plaintiffs' request, and attached an affidavit of copies of the documents that were included in that disclosure.
ביום 19.7.2023 הוגשה בקשה נוספת מטעם התובעים במסגרתה נטען כי בניגוד להודעת הנתבעת 9 לתיק בית המשפט, לא גולו על ידה כלל המסמכים אשר גילויים הספציפי התבקש. לטענת התובעים, המסמכים שהועברו הועבר ללא כל סדר, חלק מהמסמכים אשר נזכרו בתצהיר לא צורף העתקם, וכי הנתבעת 9 בחרה שלא לגלות חלק מהמסמכים מטעמים שונים שהועלו על ידה במסגרת תכתובת שהוחלפה בין הצדדים. עוד באותו יום ניתנה החלטה במסגרתה התבקשה תשובת הנתבעת 9, תוך שהובהר כי ניתן לצפות כי ב"כ הצדדים יימנעו את הצורך במתן החלטות נוספות המתייחסות להליכי הגילוי והעיון.
ביום 13.8.2023 הוגשה כאמור תשובת הנתבעת 9 ממנה עלה כי לשיטת הנתבעת 9, המסמכים אשר לא נשלחו, הם אלו החוסים תחת חיסיונות אלו ואחרים או אלו אשר אינם רלוונטיים לשיטתה להליך.עוד הועלו על ידי הנתבעת 9 טענות באשר לכלליות הבקשה, היותה בגדר "מסע דייג", והדרישות הכפולות אל מול הליכים אחרים.
Given all of this, it should be clarified that the basis of Defendant 9's response is an incorrect assumption, according to which she has, as of today, a legal right to make any reservation regarding the production of all of the specific documents whose disclosure was requested, for reasons of lack of relevance, confidentiality, lack of clarity of the request, and the like.
This is not the case, not even close to it.
The deadline to seek to obtain this or that demand of the plaintiffs has long passed. The decisions that I have made regarding the discovery and review procedures are final decisions, including the decision of April 24, 2023.
As a result, there is no longer any need to address Defendant 9's claims regarding relevance, confidentiality or any other reason for not disclosing the documents, and Defendant 9 should have, simply, disclosed the documents. All those documents Which specific disclosures were requested and in a manner that will allow the document to be identified and matched to the requirement section.
על אלו ייווספו הוראות תקנות סדר הדין האזרחי התשע"ט 2018, הטומנות בחובן הנחיות ברורות באשר להליכי הגילוי והעיון, כמו גם חובתו הבסיסית, של כל בעל דין , לנהוג בתום לב דיוני.
Defendant 9 is aware of the decisions made by me, and it is clear that she is also aware of the provisions of the law, but she chooses, time after time, a conscious choice, not to uphold them, while blatantly disregarding the rights of the opposing party, the court's decisions, and the consequences of the need to re-engage in proceedings between the parties, while wasting judicial time.
It is unfortunate that the lengths given to Defendant 9 to comply with the court's decisions, as well as the caution exercised in relation to the plaintiffs' repeated requests to strike out the defense, were apparently interpreted as giving the option of not complying with the court's decisions, or of complying with them partially.
There is no justification in law to allow this behavior to continue.
In addition to what is required, I will add and note, as has been clarified in previous decisions, that disclosure of documents made in another proceeding, or disclosure of documents by another party in the same proceeding, does not negate the duty of the 9th defendant to comply with the court's decisions and the provisions of the law. I will also note in passing that I do not agree with some of the defendant's arguments regarding relevance or confidentiality (which are argued in a very general manner), but that in any case there is no room to deal with any of these, given the totality of the decisions that were made and their dates.
Given all of this, the plaintiffs' motion to strike out the defense was filed in law. A favor was done to Defendant 9, as I do not order the striking out of her defense at this time, and even that is beyond the scope of the law, and given the ruling of the Honorable Supreme Court and the practical significance of striking out the defense in this case. In the meantime, and for the time being, I order as follows:
Defendant 9 will submit by August 31, 2023, an affidavit in response to the demand for disclosure of specific documents, prepared in accordance with the sections of the demand letter in full, and allowing each document to be associated with the individual section.
Copies of the affidavit will be attached to the affidavit. All documents (even if they were submitted in the past and even if they were submitted as part of another procedure) when they are numbered in running order, and when the relevant appendices' pages are clarified in the body of the affidavit and next to each section.
If any document is not in the possession/control of Defendant 9, and this is against investigation and demand, (for example, the Defendant's response regarding the presentation of the valuation to the company), this will be explicitly stated within the affidavit.
In any case of misunderstanding on the part of the defendant regarding the provisions of this or any other demand, the defendant 9 will act in accordance with the clarifications submitted by the plaintiffs on March 9, 2023.
למען הסר כל ספק יובהר כי ב"כ התובעים לא יידרש להגיע למשרדי החברה או למשרדי בא כוח הנתבעת 9. עוד יובהר כי אין בגילוי מסמך זה או אחר כדי להתיר למי מהצדדים להרחיב את חזית המחלוקת.
Where the documents as detailed in this decision are not found by August 31, 2023, the plaintiffs will be entitled to submit any relevant request, and given past conduct, I will go ahead and clarify that it is doubtful whether there will be any need to request an extension except for medical reasons in relation to which a specific reference will be submitted by virtue of which it can be concluded that due to that medical condition, it was not possible to comply with the court's decision.
Defendant 9 will bear the plaintiffs' expenses, regardless of the outcome of the proceedings, in the amount of NIS 15,000.
Yes, I find, very unusually, and given the scope of the inputs required by the court in an issue that should have been resolved simply and long ago, to charge Defendant 9 with expenses for the benefit of the State Treasury in the amount of 7,000 NIS. Both of these amounts will bear linkage differences and interest as required from today until actual payment.
As can be seen from this decision, although the defendant repeatedly refused to conduct document discovery procedures, the court did not order the deletion of the defense, but instead allowed her to once again fulfill her obligation, but ordered her to pay legal costs in favor of the plaintiff and also in favor of the state treasury.
This decision clearly emphasizes that deleting a defense is indeed a far-reaching sanction, and most courts will prefer to charge the litigant with legal costs rather than ordering the deletion of a defense, thus not preventing the defendant from defending himself against the lawsuit.
What does it actually mean to delete a defense?
The deletion of a defense is an extreme sanction because it effectively leaves the defendant without defense. After a decision to delete a defense, the litigant can demand and receive Judgment in the absence of a defense, and the court may decide the claim based on Claim only.
In such a case, after receiving verdict Against the defendant, the defendant will be forced to act for the purpose Filing an appeal On a judgment given after the deletion of a defense, and try to convince the appellate court that the court erred in its decision. If the litigant did indeed violate judicial decisions and did not properly follow document discovery procedures, the chances of an appeal may not be high.
In conclusion
הליכי גילוי מסמכים הם הליכים מקדמיים חשובים מאוד, אשר נועדו לאפשר לצדדים לנהל את ההליך המשפטי "בקלפים פתוחים", ובית המשפט יוכל להכריע במחלוקת על בסיס כל המידע הרלוונטי.
Failure to comply with document disclosure procedures by the defendant may lead to the filing of a motion on behalf of the plaintiff to strike out a defense. The plaintiff may do so in accordance with the provisions of Regulation 60 of the Regulations. Civil procedure.
Deleting a defense is an extreme sanction, and the court will usually prefer to allow the defendant another opportunity to discover the relevant documents, but will require him to pay legal costs in favor of the plaintiff (and sometimes legal costs also in favor of the state treasury).
If the litigant continues to violate the court's decision and fails to properly conduct document discovery procedures, the court may order the deletion of the defense. In such a case, the plaintiff will be able to obtain a judgment based solely on what is stated in the statement of claim.
After deleting a defense and receiving Judgment in the absence of a defenseAll that remains for the defendant to do is file an appeal and hope that the appellate court will consider it and overturn the decision. This is not an easy task at all.
