PROCEDURE – DISCOVERY COMPULSION – SANCTIONS – CONSTITUTIONAL RIGHTS. The law of “sanctions,” which some lawyers and some judges find irresistible, includes a very interesting combination of the purely punitive punishments, such as fines, and what you might call the “crippling sanctions,” which punish not only guilty lawyers and guilty parties, but also whatever innocent parties may be represented by ill-behaved lawyers. These punishments, which might be likened to an execution by fragmentation grenade, are not found in the “sanctions statute,” Code §8.01-271.1, but they are included in discovery Rule 4:12(b). That was the focus of a recent contract case from the Virginia Supreme Court, Nolte v. MT Technology Enterprises, LLC, in which repeated refusal to respond fully to discovery and comply with the trial court’s orders was finally punished under Rule 4:12(b). The Supreme Court held that the trial court could bar the defendants from introducing evidence, but it could not prohibit them from cross-examining the witnesses against them, nor from introducing evidence on the issue of the amount of the plaintiffs’ damages. The majority holds that the trial judge correctly found that a lesser sanction than default judgment was warranted, but it reverses the denial of the right to cross-examine and introduce counter damages evidence because “the sanction was too harsh.” And the majority reversed the judgment and remanded for further proceedings on the damages question only. Justice Powell, concurring in part and dissenting in part, pointed out that if these defendants were so bad, the trial court could lawfully grant a default judgment, but she emphatically asserts that the denial of the right to cross-examine was more than just “too harsh.” She emphasizes that the right to cross-examine is a vital feature of our system of law, quotes Wigmore to the effect that “no safeguard for testing the value of human statements is comparable to that furnished by cross-examination,” and no statement should be admitted into evidence until probed by that test. More importantly, she quotes Goldberg v. Kelly, 397 U.S. 254, 263 (1970), to that effect, and Basham v. Terry, 199 Va. 817, 824, 102 S.E.2d 285, 290 (1958), stating that the right to cross-examine is not discretionary, but is absolute. She cites Friend on Evidence in Virginia, 112 (2003 edition), and Food Lion, Inc. v. Cox, 257 Va. 449, 450, 512 S.E.2d 860, 901 (1999), emphasizing that only reversal and remand for new trial can follow the denial of this absolute right.