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Identiseal Corp. v. Positive Identification Systems, Inc.

Citation. 560 F.2d 298 (7th Cir. 1977).
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Brief Fact Summary.

The district court ordered Identiseal Corp. (Plaintiff) to conduct additional discovery. When Plaintiff refused, the court dismissed the action.

Synopsis of Rule of Law.

Dismissal for failure to follow a discovery order is only appropriate when the failure equates to a failure to prosecute. 


Plaintiff filed a lawsuit claiming that Positive Identification Systems (Defendant) obtained a franchising agreement with Plaintiff by misrepresenting the success of the product to be sold. At the final pretrial conference, the district court ordered Plaintiff to conduct additional discovery that the court deemed necessary to efficiently try the case or face dismissal. Plaintiff refused the order, claiming that it was in Plaintiff’s best interest to take the case to trial without additional discovery. The district court dismissed the action and Plaintiff appealed. 


Can a district court dismiss an action for failure to follow a discovery order when that failure does not rise to the level of a failure to prosecute?


(Swygert, J.) No. Dismissal for failure to follow a discovery order is only appropriate when the failure equates to a failure to prosecute. Federal Rule of Civil Procedure 16 allows a court to order a pretrial conference to discuss the discovery process and the efficient presentation of the case at trial.  It does not provide authority to compel Plaintiff to conduct discovery.  Without authority to compel discovery, the only way to uphold the district court’s dismissal for refusing to comply with the order is if the failure to provide discovery could be characterized as a failure by Plaintiff to prosecute its complaint. In this case, Plaintiff was ready for trial and merely disagreed with the district court over which facts needed to be developed at trial. Reversed and remanded.


The Federal Rules of Civil Procedure allow trial judges to intervene in the discovery process in order to resolve issues about the scope of discovery requests and to enforce discovery requests between the parties.  The Rules do not allow the judge to compel a party to engage in discovery of the court’s request.  The district court exceeded its authority in ordering the discovery, and could not dismiss the case for Plaintiff’s failure to comply.

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