Rule 37 Sanctions Granted For Failure to Complete Initial Disclosures


Rule 26(a) now requires most litigants to make certain disclosures of the types of documents they have that are relevant to the lawsuit and the names and addresses of witnesses. The purpose of the initial disclosures is to reduce the squabbling among lawyers over basic interrogatories and document requests. The idea is to speed up the litigation and avoid the inevitable discovery disputes that arise.

In Hill v. Alpine Sheriff Department, 18cv2470 (S.D. California) the plaintiff did not make the disclosures and then, when he was sanctioned, moved to remove the Magistrate judge. The District Court was unimpressed with his arguments:

Here, the motion to remove, which this Court deems an objection to Magistrate Judge Dembin’s Sanctions Order, is untimely. Fed.R.Civ.P. Rule 72(A). While it appears Plaintiff may have been incarcerated when the objections to the Sanctions Order were due, he waited almost one year from the issuance of the Sanctions Order to file objections.

Nevertheless, even if his objections had been timely, Plaintiff has failed to show that the Sanctions Order was “clearly erroneous” or “contrary to law.” 28 U.S.C. § 636(b)(1)(A). Magistrate Judge Dembin ordered Plaintiff to serve initial disclosures on several occasions. [Doc. Nos. 12, 21.] Plaintiff’s argument at the time was that he did not understand why he had to serve initial disclosures, as everything was contained in his complaint. [Doc. No. 30 at 1.] However, Magistrate Judge Dembin explained to Plaintiff why he could not merely rely on the allegations and exhibits to his complaint. [Doc. No. 32 at 4-5.] Nevertheless, Plaintiff failed to serve his initial disclosures.

Now, in this motion to remove, Plaintiff continues to argue that he should not have to comply with the initial disclosure rules because all the evidence is in his complaint. [Doc. No. 54 at 1; Doc. No. 62 at 1.] As Magistrate Judge Dembin previously explained to Plaintiff, reliance on exhibits submitted with his complaint is insufficient. Fed.R.Civ.P. Rule 26(a)(1); Davis v. Molina, No. 1:14-cv-01554 LJO DLB PC, 2016 W.L. 1587022, *2 (E.D. Cal., August 19, 2016) (finding a plaintiff was not substantially justified in failing to provide initial disclosures to defendants and instead referring defendants to his initial pleadings and their attachments). Moreover, the fact that Plaintiff is pro se does not negate his obligation to comply with the rules and with Court orders. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)(“Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.”) As a result, Plaintiff has failed to show that the Magistrate Judge’s order was “clearly erroneous” or “contrary to law.”

This case is unpublished, but it offers a reminder to follow the rules, produce the disclosures and spend time on the merits of the litigation. Also, of course, do not attack the judge who disagreed with you.

Ed Clinton, Jr.

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