If you don’t disclose it or produce it, you can’t use it.

Bryntesen v. CAMP AUTOMOTIVE, INC., Dist. Court, D. Idaho 2015 – Google Scholar.

There is an old saying in the legal world that “if you don’t produce it, you can’t use it at trial.” Here, the plaintiffs filed suit apparently against a company that sold or leased them an RV. There was a dispute about payment and, at some point, the plaintiffs were arrested by the police.  Plaintiffs failed to disclose in discovery videos of the arrest.

The court sanctioned the plaintiffs under Rule 37, and also awarded them legal fees and costs for brining the motion. Instead, the court held that the plaintiffs could not use the videos in their case because they deprived the defense of the opportunity of asking questions about the videos in discovery.

The pertinent quote is this one:

Plaintiffs only produced the videos after Sheree Bryntesen acknowledged their existence during her deposition. And only after disclosing the videos of the incident, did Plaintiffs’ counsel “investigate whether any other media files had also been inadvertently omitted from previous disclosure and discovery responses.” Plf. Br., at p. 5, Dkt. 76. “It was then that Plaintiffs’ counsel discovered that the video of the telephone conversation between Casey Bryntesen and Scott Grumbly had not yet been disclosed or produced.” Id.

Mistakes and oversights happen, but the number of mistakes and oversights here are troubling. Especially where the disclosure was not ultimately made until after the vast majority of the depositions occurred — depriving defense counsel of the opportunity to ask most witnesses, particularly the officers involved in the arrest, about the videos. Plaintiffs failed to timely disclose the videos as required by Rule 26(a) and (e). And, under these circumstances, the Court finds that the late disclosure was not substantially justified or harmless — as is necessary to avoid Rule 37 sanctions. Repeated oversights are not substantial justification, and defense counsel’s inability to question witnesses about the videos during their depositions is surely not harmless….

Here, the proper sanction is to preclude Plaintiffs from using the videos on a motion, at a hearing, or at trial. Defendants may still use the videos. However, if they do so, the Court will then allow Plaintiffs to use them as well — Defendants can make that choice.”

In, sum an excellent opinion discussing the rationale for the preclusion of evidence.

Edward X. Clinton, Jr.


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