## Facts

- George K. Gordon filed a pro se action under 42 U.S.C. § 1983 against Idaho, Ada County, and various officials, alleging he previously was jailed for twelve days for civil contempt after refusing an oath or affirmation that conflicted with his religious beliefs.
- During discovery in the federal case, defendants noticed Gordon’s deposition duces tecum requiring testimony “under oath.”
- Gordon appeared but refused to swear or make an alternative “affirmation,” asserting religious objections to the form of an oath or affirmation while expressing willingness to testify truthfully.
- The district court granted a motion to compel and ordered Gordon to “either swear or affirm” at a rescheduled deposition.
- At the rescheduled deposition, Gordon again refused to swear or affirm; defendants moved for sanctions.
- The district court dismissed the action with prejudice under Federal Rule of Civil Procedure 37(b)(2)(C) for failure to obey the discovery order.

## Issues

1. Whether the district court abused its discretion by dismissing the § 1983 action with prejudice under Rule 37(b)(2)(C) based on Gordon’s refusal to swear or affirm, where the refusal stemmed from sincere religious belief and other forms of binding truthful testimony were available.

## Decision

- The Ninth Circuit reversed the dismissal.
- The court held the district court abused its discretion by imposing the drastic sanction of dismissal without considering less severe measures.
- The court concluded the purposes of an oath or affirmation could have been met through an alternative, nontraditional declaration that respected Gordon’s religious objections while still subjecting him to perjury consequences.

## Legal Principles

- Dismissal with prejudice under Rule 37(b)(2)(C) is a severe sanction appropriate only in extreme circumstances; courts should consider less drastic sanctions before terminating an action.
- For testimony, the law focuses on function rather than fixed wording: any solemn undertaking that impresses the duty of truth and exposes the witness to perjury sanctions can satisfy oath/affirmation requirements.
- Discovery orders should be applied in a manner that avoids unnecessary burdens on sincerely held religious beliefs when reasonable accommodations can preserve the integrity of the process.

## Conclusion

The Ninth Circuit held that dismissal under Rule 37 for refusing a traditional oath or affirmation was an abuse of discretion because the district court failed to consider available alternatives that would secure truthful deposition testimony without unnecessarily burdening religious exercise.


Gordon v. Idaho, 778 F.2d 1397 (9th Cir. 1985)