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White Mountain Mining Partners v. Ptarmigan Company (11/24/95), 906 P 2d 1357
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
WHITE MOUNTAIN MINING )
PARTNERS, an Alaska Limited ) Supreme Court No. S-5743/5744
Partnership, and WAYNE BOLT, )
)
Appellants, )
) Superior Court No.
v. ) 3AN-90-9008 CI
)
PTARMIGAN COMPANY, INC., ) O P I N I O N
)
Appellee. ) [No. 4286 - November 24, 1995]
______________________________)
)
NABESNA MINING PARTNERS, an )
Alaska Limited Partnership, )
)
Appellant, )
)
v. )
)
PTARMIGAN COMPANY, INC., )
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Joan M. Woodward, Judge.
Appearances: J. Jeffrey Mayhook, Law Offices
of J. Jeffrey Mayhook, Anchorage, for
Appellant White Mountain Mining Partners.
Wayne Bolt, pro se, Anchorage. Kirsten
Tinglum, Ashburn & Mason, P.C., Anchorage,
for Appellee Ptarmigan Company, Inc.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MATTHEWS, Justice.
The main issues in these cases are whether the trial
court erred in entering issue-preclusion sanctions and, in a
subsequent order, litigation-ending sanctions. We affirm the
order of issue preclusion, vacate the order ending the
litigation, remand to the trial court for additional findings and
a decision in light of those findings, and retain jurisdiction
pending the trial court's decision.
I. FACTS AND PROCEEDINGS
Ptarmigan Company, Inc. (Ptarmigan), is the owner of
two groups of mining claims located within the Wrangell-St. Elias
National Park and Preserve. The first group, the White Mountain
claims, are patented. The second group, the Rambler claims, are
unpatented. On July 1, 1983, Ptarmigan granted to Wayne Bolt
(Bolt) the mining rights in the Rambler claims in exchange for
minimum royalty payments of $1500 per month to begin June 1,
1984, and increasing over time. The grant also provided for
production royalties. Bolt was required to perform annual
assessment work and do a minimum amount of drilling in the first
two years of the grant. The grant contained a force majeure
clause, excusing performance of the grant under certain
circumstances. The term was ten years, subject to extension year
by year by commercial production so long as minimum royalties
were paid.
On July 2, 1984, Ptarmigan granted mining rights to
Bolt in its White Mountain claims. Bolt was to pay Ptarmigan a
minimum royalty which increased to $5000 per month as of June 1,
1988. In addition, a production royalty was to be paid to the
extent that the production royalty due exceeded the minimum
royalty. The term of the agreement was fifteen years subject to
extension year by year by commercial production so long as
minimum royalties were paid. This agreement also had a force
majeure clause.
By mutual agreement the parties amended the Rambler
grant on July 2, 1984. Under the amendment, Bolt's obligations
under the grant were suspended due to action by the Bureau of
Land Management declaring that the Rambler claims were void.
Bolt's obligations were to resume if and when Ptarmigan was able
to establish its right, title and interest to the Rambler claims.
If the Rambler claims were lost Bolt was to be allowed certain
credits on the White Mountain claims. These were confusingly
described in the amendment as "not to exceed fifty thousand
dollars ($50,000) and up to the four hundred twenty-five thousand
dollars ($425,000) Wayne Bolt expended on the Rambler claims
during 1983."
Bolt assigned the Rambler grant to Nabesna Mining
Partners (NMP), an Alaska limited partnership of which Bolt is
the general partner. Bolt assigned the White Mountain grant to
White Mountain Mining Partners (WMMP), another Alaska limited
partnership of which Bolt was also general partner.
In March of 1986, WMMP granted Colorado Resources, Inc.
(CRI), a publicly traded Washington corporation, an option on the
White Mountain claims in exchange for cash and CRI stock. Bolt
became a CRI director in 1987 and president of the company in
1988. CRI began negotiating with Newmont Mining Corporation, a
large international gold producer. On September 27, 1988, NMP
assigned the Rambler claim grant to CRI in exchange for CRI stock
and a $50,000 demand note. On the same day, WMMP assigned the
White Mountain grant to CRI pursuant to the previously granted
option in exchange for additional CRI stock and a demand note for
$50,000. Both notes from CRI contained strict forfeiture clauses
purporting to give the payees the right to nullify the
assignments on nonpayment. A month later, CRI assigned both
grants to Newmont. The agreement with Newmont recites that
Newmont paid $110,000 to CRI on execution of the agreement and
contains a promise to pay a $75,000 annual royalty on the first
day of May of 1989, 1990, and 1991. Thereafter the annual
royalty was to increase. A production royalty was also provided
for.
At some point a derivative suit on behalf of certain
shareholders of CRI was filed against Bolt. On May 10, 1989,
WMMP and NMP executed and later recorded documents purporting to
cancel for nonpayment the assignments of the White Mountain and
Rambler grants to CRI. On May 30, 1989, Newmont terminated its
agreement with CRI under which Newmont had been granted the White
Mountain and Rambler claims. In a letter of that date Newmont
asked CRI whether "it wish[ed] to receive an assignment of the
Underlying Agreements and Properties." On July 7, 1989, Newmont
forwarded an executed reassignment to CRI. On August 30, 1989,
Newmont wrote to Ptarmigan, stating that Newmont interpreted
inaction by CRI as an election not to accept reassignment of the
claims. Newmont expressed its desire to terminate its interests
in the grants. On September 21, 1989, Newmont quit-claimed its
interest in the grants to Ptarmigan and paid Ptarmigan $5000 as
the "final $5000 payment due under the captioned Grants."
Until September of 1989 the $5000 monthly royalty due
Ptarmigan under the original White Mountain grant was regularly
paid. The payment of the Rambler grant was excused. On
September 1, 1989, Bolt, on behalf of WMMP, invoked the force
majeure clause of the original White Mountain grant, stating that
"[m]onthly payments are now in abeyance" because of an injunction
prohibiting mining in certain national parks. Bolt promised to
use his best efforts to gain approval from the court for a plan
of operation which would lift the injunction as to the White
Mountain claims. On September 11, 1989, CRI filed a petition in
bankruptcy under Chapter 7 of the Bankruptcy Act. On September
17, 1990, the trustee for CRI quit-claimed CRI's interest in the
mining claims to Ptarmigan in exchange for $3500.
On October 31, 1990, Ptarmigan sued Bolt, WMMP and NMP
in the superior court. Ptarmigan's suit contains three counts.
The first count alleges that Ptarmigan owns the claims by virtue
of its original ownership and the quit-claim deeds from CRI and
Newmont, and that WMMP's, NMP's, and Bolt's claims by virtue of
the May 1989 cancellations "are without right." In the second
count, Ptarmigan claims that the cancellations were made "with an
intent to defraud CRI of the White Mountain and Rambler mining
claims and to hinder and cloud Ptarmigan's rights to the Rambler
and White Mountain mining claims," and are therefore void under
AS 34.40.010.1 The third count claimed that Bolt was in breach
of his contract with Ptarmigan in two respects: (1) by failing
to pay the $5000 monthly royalty since September of 1989, and (2)
by assigning the White Mountain and Rambler claims to CRI and
permitting CRI to assign the claims to Newmont.
Ptarmigan requested the following relief: (1) that the
May 1989 cancellations be voided and removed from the chain of
title to the White Mountain and Rambler claims; (2) that Bolt pay
damages for the missed royalty payments from "October 1989 to
September 1990," plus interest; and (3) in the alternative, that
the original grant of mining rights to Bolt be terminated for
breach of contract and that Bolt be required to pay damages in
the amount of the missed royalty payments from October 1989 to
the date of termination. In addition Ptarmigan requested
interest, costs and attorney's fees.
Bolt answered the complaint, asserted a number of
affirmative defenses including waiver, estoppel and ratification,
asked for an affirmative ruling from the court that Ptarmigan's
"only interest in the White Mountain and Rambler claims is as
owner and lessor of such claims," and demanded a jury trial.
On March 4, 1991, Ptarmigan propounded comprehensive
interrogatories and requests for production. On July 3, 1991,
Ptarmigan moved for an order compelling responses to the requests
for production and to certain of the interrogatories. In
addition Ptarmigan sought an order compelling compliance with
Alaska Civil Rule 16.1(k).2 The motion was opposed on the
grounds that Bolt had complied with discovery, had "provided
thousands of pages of responsive documents, and . . . answered
interrogatories and requests to admit [and] timely objected to
the remainder of the requests to produce interrogatories and
requests to admit." Bolt also responded to the motion to compel
compliance with Civil Rule 16.1(k), generally noting that his
response to the motion to compel covered the items required to be
produced under 16.1(k) and that the other items mentioned in the
rule were inapplicable except for insurance documents, as to
which Bolt opined that there was no "need for a court order to
have those produced." On October 19, 1991, the superior court
entered an order compelling discovery, requiring the defendants
to answer certain of the interrogatories, and to respond to most
of the requests for production within thirty days.
The defendants responded to the requests for production
on November 18, 1991. In general, the responses identified where
the documents could be inspected, identified the documents as
voluminous, and asked for prior notice as to when inspection
would take place. However, concerning the requests for the
personal federal income tax returns for Wayne Bolt and Ann Bolt
for 1986 through 1990, the defendants' response was different.
The response opened by pointing out that Ptarmigan had refused to
produce copies of its tax returns in response to a request for
production by defendants on the ground of relevance, and invited
Ptarmigan to limit its discovery requests reciprocally. Next the
response asked Ptarmigan to explain why the returns were relevant
and then turned to an examination of case law recognizing a
taxpayer's privacy interest in the taxpayer's income tax return.
Finally, the defendants concluded by stating that if Ptarmigan
continued to insist on production of the tax returns, Bolt would
produce the returns in court for in-camera review. The
concluding paragraphs of the response to the requests for
production read as follows:
Defendants conclude by reiterating their
desire and intent to comply with the court's
order and with all reasonable discovery
requests in a manner and with reasonable
procedures which they believe will carry out
the intention of the court.
Finally, to the extent that [Ptarmigan]
continues to insist on production of the tax
returns, defendant Bolt will comply with the
court order, and make production, but to the
court for in camera review and inspection,
together with an appropriate motion and order
limiting discovery and misuse of defendant
Bolt's federal income tax return information.
On November 27, 1991, Ptarmigan moved for sanctions for "willful
failure" to produce income tax returns. The sanction sought was
establishment as a fact that the May 1989 cancellations of the
lease assignments were fraudulent. A few days later counsel for
Ptarmigan filed an affidavit which stated that she and counsel
for Bolt had arranged that on December 4, 1991, she would be
allowed to inspect eight boxes of documents belonging to the
defendants. She related that on the day before the event counsel
for Bolt reported to her that Bolt had without explanation
demanded that the eight boxes be returned to him and that Bolt's
counsel complied with this request.
While the motion for sanctions was pending, Ptarmigan
moved to have the case set for trial, stating that, "[w]ith the
court's assistance in enforcing discovery through sanctions, all
meaningful discovery can be completed in the next 60 days."
Bolt's counsel obtained an extension of time in which to respond
to the motion for sanctions. On January 6, 1992, the defendants
responded to the motion, again arguing that the Bolts' tax
returns were irrelevant and that Ptarmigan had refused to produce
its tax returns. Concerning relevance, the defendants argued
that Ptarmigan was not truly sincere about obtaining information
from them and was only interested in obtaining sanctions. The
defendants argued that if Ptarmigan were interested in obtaining
information, it would depose Bolt. The defendants concluded:
The court should deny the motion for
sanctions and issue a protective order
against disclosure of tax returns, unless and
until Ptarmigan, after deposing Mr. Bolt, can
make a strong showing of relevance and need,
and can justify a sufficiently narrow breach
of the normal rules of confidentiality which
govern tax returns, tailored to the
circumstances of this case.
Along with their opposition to the motion for sanctions, the
defendants moved for a protective order "preventing, limiting, or
conditioning [Ptarmigan's] right to inspect personal income tax
returns of Ann Bolt and Wayne Bolt," supported by essentially the
same grounds as their opposition to the motion for sanctions.
Ptarmigan's counsel then sought to arrange Bolt's
deposition and noticed it for February 11, 1992. The deposition
did not take place, however, as Bolt's counsel was initially
unable to reach Bolt and eventually received a letter from Bolt
stating that he refused to be deposed.
On February 13, 1992, before the motion for sanctions
was ruled on, the trial court issued a pretrial order setting the
case for trial on May 11, 1992. Also while the motion for
sanctions was pending Ptarmigan filed a second motion for
sanctions on February 20, 1992. The second motion asked that the
court enter a default judgment against the defendants for their
refusal to comply with the court's October 1991 discovery order.
On February 21, 1992, Judge Woodward denied the
defendants' motion for protective order and granted, in part, the
first motion for sanctions. The order required production of the
requested income tax returns within fifteen days and payment of
$400 "or the requested issue preclusion order will be entered."3
The fifteen-day deadline established by the trial court's order
of February 21, 1992, passed without production of the requested
income tax returns. Accordingly, on March 31, 1992, Judge
Woodward granted Ptarmigan's first motion for sanctions and
entered an order establishing that the May 1989 cancellations
were fraudulent. The order states:
1) Bolt had refused to comply with the
court's order compelling discovery; 2) that
Bolt's noncompliance was willful and in bad
faith; 3) that the fact sought to be
established was relevant to the information
willfully withheld; and 4) that Ptarmigan
made a clear showing that the establishment
of the fact was required under the
circumstances of the case.
On April 13, 1992, defendants responded to the second
motion for sanctions. Defendants argued that they had provided
much information to Ptarmigan in response to Ptarmigan's
discovery requests and that Ptarmigan had made no showing as to
how the nonproduction of any particular document had any
relevance to it claims. Defendants also argued that plaintiff
had moved for summary judgment and for trial and that both
motions were inconsistent with any assertion that plaintiff
needed hundreds of thousands of additional documents in order to
prepare for trial. Defendants' counsel also offered the
deposition of Bolt, stating that Bolt "now advises that . . . he
would readily participate," and asked for an evidentiary hearing
so that Bolt could testify and full consideration of all the
relevant factors could be assured.
On April 21, the defendants moved to remove the case
from the trial calendar. This motion was opposed by Ptarmigan.
On April 27, 1992, the trial court scheduled an
evidentiary hearing on Ptarmigan's second motion for sanctions
for May 1, 1992. The court ordered Bolt "to bring with him to
the hearing every single document previously ordered to be
produced. The court can envision no excuse in this regard that
will be tolerated."
At the May 1 hearing, Bolt appeared with counsel and
seven cartons of records. Counsel represented that the cartons
contained about 16,000 pages of documents and that another seven
cartons of records, containing another 15,000 pages, were in
counsel's office in the process of being copied. The records did
not include the defendants' tax returns which had been requested,
though Bolt stated that he had brought some of the tax returns
with him.
At the conclusion of the hearing, the trial court
granted the second motion for sanctions and ordered the default
of the defendants. The court found that Bolt's conduct
"exhibited willfulness beyond any doubt." The court did not find
that there were documents which had not been produced which were
relevant to the case in its post-preclusion-order context.
Instead, the court found that in order for appellee's counsel to
understand the documents that had been, or were in the process of
being, produced, a continuance of the upcoming trial date would
be necessary. The court stated:
In this case, there appears at this
juncture to be no remedy short of default
that fits the conduct engaged in by Mr. Bolt.
Ms. Tinglum [Ptarmigan's counsel] initially
suggested at least one other option,
[prohibiting Bolt from testifying at trial,]
a very dire sanction. And she was forced to
back down on that when it became evident that
to be safe from her perspective she would
have to have access to the documents; have to
have an opportunity to examine them; and that
inevitably that would require a substantial
delay of the trial.
This after all [is] what Mr. Bolt
wanted. To do other than grant the default
in this instance would be to give the
defendants in this case precisely what they
were hoping to achieve by their dilatory
tactics. And I decline to make such a
mockery of the court system and of our
discovery orders, as that would accomplish.
The court thereupon entered an order of default on the second
motion for sanctions and a final order and judgment quieting
title to the Rambler and White Mountain claims in favor of
Ptarmigan.
Appellants challenge the preclusion order and the order
of default on the grounds that the personal tax returns of the
Bolts were not relevant, Bolt's noncompliance was not willful,
the noncompliance did not materially hamper or prejudice
Ptarmigan's case, the sanctions did not directly relate to the
violations, and the court did not adequately consider lesser
sanctions.
II. DISCUSSION
In determining whether a trial court abused its
discretion in entering issue-establishment or litigation-ending
sanctions, a three-step analysis is used. There must be (1) a
finding of willfulness; (2) a record that indicates a reasonable
exploration of possible and meaningful alternatives; and (3) a
sufficient relationship between the discovery materials and the
case.4
A. First Sanction
Concerning the first sanction of issue establishment,
there is ample evidence supporting the superior court's finding
that Bolt's noncompliance was willful. Prior to entry of the
March 31 establishment order, two discovery orders were entered,
one on October 19, 1991, and the second on February 21, 1992,
neither of which Bolt obeyed. The second order gave Bolt fifteen
days to produce the tax returns and to pay Ptarmigan $400 as a
monetary sanction, or suffer the entry of the establishment
order. Bolt still refused to turn over any of the tax returns or
pay monetary sanctions to Ptarmigan. Thus, despite two orders,
two separate deadlines, and one specific warning that the
requested sanction would be imposed, Bolt failed to produce any
tax returns.
The record in this case also reflects that the superior
court considered possible and meaningful alternatives to the
issue-establishment sanctions. Prior to the March 31
Establishment Order, the court not only considered, but actually
tried imposing the lesser alternative of a monetary fine. Its
February 21 order required Bolt to pay $400 and produce the tax
returns compelled by the October 19 order within fifteen days.
Bolt failed to pay the monetary sanction and produce the tax
returns by the new deadline.
Concerning the third step in the analysis, that of
relevance, the issue of wrongful cancellation appears to be
sufficiently related to the discovery request. In describing the
relevance of the tax returns, Ptarmigan stated:
[t]hese documents [the 1986-1990 tax returns
of Wayne and Ann Bolt and Bolt's company,
Alaska Drilling] are critical to Ptarmigan's
theory that the May, 1989 cancellations were
a fraud as they may evidence that while he
controlled WMMP, NMP, Alaska Drilling and
Colorado Resources, Inc. ("CRI"), Bolt was
lining his own pockets (often through Alaska
Drilling) with CRI funds while portraying to
the world and CRI shareholders that CRI could
not afford the $50,000 required to avoid the
cancellation.
(Emphasis added.) The income tax returns sought by Ptarmigan
were thus potentially relevant to the question of whether the
notes due from CRI to the partnerships had been paid.
Accordingly, the superior court was correct in ruling that the
tax returns were sufficiently related to the issue of wrongful
cancellation to justify the first sanction imposed.
B. Second Sanction
As noted, Bolt's counsel brought seven cartons of
records to the May 1 hearing. He stated that these cartons
contained about 16,000 documents and that another seven cartons
containing about 15,000 documents were in his office and were
then being copied for production. He stated that his office
could only copy about 10,000 documents per day, and that the
documents would be given to plaintiff's counsel when copying was
completed. The failure to bring all fourteen cartons to the May
1 hearing violated the court's April 27, 1992 order. However, no
grounds exist for questioning the good faith of Bolt's counsel in
deciding to continue copying the remaining seven cartons of
documents so that copies could be furnished to plaintiff's
counsel on the following day rather than to bring them to court.
In arguing for the second sanction, plaintiff's counsel did not
claim that she had been prejudiced by the non-production of all
fourteen cartons on May 1. Instead, she argued that her problem
was that too many documents had been produced for her to
meaningfully deal with, given the fact that the trial was only
ten days off. In making this argument she assumed that all of
the documents in the fourteen cartons had been produced: "They
waited until ten days before trial to produce 30,000 documents
and argue with a straight face that we should be prepared to go
forward on the 11th after deposing Mr. Bolt next week. It is an
impossible task." Because of the good faith of Bolt's counsel
and the lack of prejudice to Ptarmigan, the decision of Bolt's
counsel to continue copying the documents in the remaining seven
cartons rather than bring them to court on May 1 is not a
violation which would support serious sanctions. To the extent
that the court relied on this violation in entering the order of
default the court erred.
However, the fact remains that the documents in the
fourteen cartons should have been timely produced in response to
the court's order of October 19, 1991. The trial court's finding
of willful noncompliance, insofar as it pertains to these
documents and the October 19, 1991 order, is supported by the
evidence. The same is true with respect to the tax returns which
were never produced.
The superior court did not make findings concerning the
existence of a relationship between the issues remaining to be
tried and the untimely produced documents or the unproduced tax
returns. It follows that the court also made no findings as to
whether there was a sufficient relationship between the documents
and the issues which remained in the case to warrant litigation-
ending sanctions.5 Once the court had established the issue of
fraudulent conveyances in the first sanction, the relevance and
importance of the documents may reasonably be questioned.
After the issue establishment order was entered, the
issues remaining to be litigated were those in the third count of
Ptarmigan's complaint: that Bolt was in breach of his contract
with Ptarmigan (1) by failing to make the $5,000 monthly royalty
payments on the White Mountain claims, and (2) by assigning the
claims to other entities without Ptarmigan's permission. Bolt's
defense to the first issue doubtless includes the force majeure
clause based on his claim that an injunction prohibited mining.
See supra, page 5. His defense to the second claim probably will
include a claim of ratification based on the fact that Ptarmigan
accepted payments from the assignees. The trial as so framed
does not appear to be a complex one which requires numerous
documents. However, it is possible that the withheld documents
are sufficiently related to the issues remaining to be litigated
to justify the second sanction.
Because of the lack of findings by the superior court
concerning a sufficient relationship between the discovery
violation and the issues which remained for trial after the first
sanction was entered, we are remanding this case for entry of
specific findings on this subject. Based on these findings, the
superior court should re-examine whether the sanction of default
was appropriate.
We will retain jurisdiction pending receipt of the
superior court's findings and decision. The other issues raised
by Bolt on appeal will be held in abeyance.
III. CONCLUSION
The superior court's sanction of issue establishment
against Bolt is AFFIRMED. The court's sanction of default
judgment is VACATED; we REMAND for entry of findings of fact
concerning the sufficiency of the relationship between the late
produced documents and the withheld tax returns and the issues
which remain in the case, and for the trial court's determination
as to whether in light of those findings the default sanction was
warranted. Jurisdiction is retained.
_______________________________
1 The complaint cites AS 34.40.810. This is an evident
typographical error as such a section does not exist. Alaska
Statute 34.40.010 provides:
A conveyance or assignment, in writing
or otherwise, of an estate or interest in
land, or in goods, or things in action, or of
rents or profits issuing from them or a
charge upon land, goods, or things in action,
or upon the rents or profits from them, made
with the intent to hinder, delay, or defraud
creditors or other persons of their lawful
suits, damages, forfeitures, debts, or
demands, or a bond or other evidence of debt
given, action commenced, decree or judgment
suffered, with the like intent, as against
the persons so hindered, delayed, or
defrauded is void.
2 Civil Rule 16.1(k) requires each party without formal
request or motion to furnish to other parties certain specified
documents germane to the case, including "all relevant contracts
and all written and recorded communications, memoranda, and notes
which contain evidence relevant to the interpretation of such
contracts and any claimed breaches thereof."
3 Judge Woodward also observed "[d]efendants are not
entitled to wait until after a motion to compel has been granted
to brief for the first time their arguments in support of their
specific objections to discovery which has been compelled."
4 In Underwriters at Lloyd's London v. The Narrows, 846
P.2d 118, 119-20 (Alaska 1993), we stated:
The law on Rule 37 sanctions in Alaska
is well settled. Issue establishment under
Rule 37(b), that is, conclusively resolving
an issue against a party who does not comply
with discovery orders, is an "extreme
sanction which should be used only in extreme
cases." Otis Elevator Co. v. Garber, 820 P.2d
1072, 1074 (Alaska 1991). For this reason,
the trial court must find that the
non-complying party "willfully" violated the
discovery order in question. Alaska Trams
Corp. v. Alaska Elec. Light & Power, 743 P.2d
350, 354 (Alaska 1987), cert. denied, 485
U.S. 905, 108 S.Ct. 1077, 99 L. Ed. 2d 236
(1988). "Willfulness" is defined as the
"conscious intent to impede discovery, and
not mere delay, inability or good faith
resistance." Hawes Firearms Co. v. Edwards,
634 P.2d 377, 378 (Alaska 1981). We have
held that before a court may impose litiga
tion ending sanctions for discovery vio
lations the record must clearly indicate a
reasonable exploration of possible and mean
ingful alternatives to dismissal. Sandstrom
& Sons, Inc. v. State, 843 P.2d 645 (Alaska
1992). Finally, the sanction must be "suf
ficiently related" to the discovery
violation. Honda Motor Co. v. Salzman, 751
P.2d 489, 493 (Alaska 1988). We must deter
mine "if the established issue is an 'element
of the dispute that cannot be determined on
the merits without disclosure of the evidence
the court has ordered the party to produce.'"
Id. (quoting Hazen v. Municipality of Anchor
age, 718 P.2d 456, 460 (Alaska 1986)).
5 In Alaska Trams Corp. v. Alaska Electric Light & Power,
743 P.2d 350, 354-55 (Alaska 1987), we spoke of the need that the
withheld materials be "substantial, as opposed to incidental,
with respect to the issues in the case."