Category: Rule 26(a) Disclosures

Plaintiff Sanctioned for Withholding Tape Recording

In Jarrell v. Shelter Mutual Insurance Co, 18 cv 183 KS-MTP (Southern District Mississippi, August 1, 2019, plaintiffs sued for insurance coverage after their home was damaged in a fire. Discovery began. Depositions were taken. Then it emerged that the plaintiffs had withheld a recording of a conversation between plaintiffs’ counsel and the insurance company’s adjuster. The recording was made surreptitiously.

In response to an interrogatory requesting any recordings, plaintiffs gave a non answer:

 Included was Interrogatory No. 9, which stated as follows:

State whether or not you, your attorney, anyone acting on your behalf or any other person has obtained any statement (whether signed or otherwise adopted by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription) from any person concerning any occurrence or allegation or alleged damages which is a subject of this suit and, if the answer is in the affirmative, please identify each and every person giving such statement and the custodian of the statement.

On March 19, 2019, Plaintiffs answered Interrogatory No. 9 as follows:

Objection is made to Interrogatory No. 9 as the same would invade the work product and work efforts of Plaintiff’s attorneys. Plaintiffs personally have not obtained any written statements from anyone, expect those produced in discovery and already provided to Defendants and their attorneys from contractors, engineers and other person acting on behalf of Plaintiffs.

The insurance company moved for sanctions and requested the dismissal of the complaint.

The court held that the recording should have been turned over with the plaintiffs’ initial disclosures under Rule 26. Further, the failure to disclose the recording merited sanctions under Rule 37.

The court declined to dismiss the case and instead ordered the plaintiffs to pay the defendant’s reasonable attorney fees in bringing the motion. The court also ordered that the plaintiffs were precluded from using the deposition testimony of two witnesses who worked for the insurance company.

While the Court does not condone the belated production of the recording, the Court finds that dismissal of this action is not warranted in this case. Shelter argues that the recording undermines the allegations found in Plaintiffs’ complaint. A Rule 37 motion, however, is not the proper method to test the merits of Plaintiffs’ claims. Additionally, the prejudice caused by Plaintiffs’ failure to timely produce the recording can be cured by precluding Plaintiffs from using the deposition testimony of Haines and Cartledge and allowing their depositions to be retaken. See, Mason,229 F.R.D. at 537. The Court also finds that the desired deterrent effect can be achieved by a monetary sanction. See Griffin v. Javeler Marine Services, LLC,2016 WL 1559170, at *5 (W.D. La. Apr. 18, 2016).

The Court finds that Shelter should be awarded the reasonable attorney’s fees incurred in attending the depositions of Haines and Cartledge on May 30, 2019, and preparing the instant Motion. 

Comment: this is an interesting case as it involved recordings between an adjuster and the plaintiffs’ attorney. In my view, plaintiffs are lucky their case survived this underhanded action.

Ed Clinton, Jr.

District Court Sanctions Plaintiff for Insufficient Damages Calculations

The opinion below contains a decision of the district court to grant a motion for Rule 37 sanctions on the basis that plaintiff’s damages calculations were insufficiently detailed. It is important to note that the opinion is the second time the plaintiff was sanctioned for insufficient discovery responses pursuant to Rule 37.

The plaintiff is a medical doctor who was terminated by the Defendants from his teaching position. Plaintiff alleged that he was terminated in retaliation for raising issues concerning patient care. The Defendants denied that allegation.

Rule 26(a) requires a plaintiff to provide a calculation of each category of damages claimed. In this case the plaintiff’s counsel tendered a letter to the Defendants with a bullet point list of categories of damages. Plaintiff only produced the letter after the court granted a motion to compel which required him to produce a damages calculation. The opinion explains:

By an Opinion dated June 19, 2015, the Court granted the motion in part and denied it in part, precluding Thompson from introducing any new and unproduced documents as evidence of damages against the NYU Defendants and ordering him to “produce his computation of damages within two weeks, relying on the documents he has produced or acquired through discovery.” Thompson, 2015 WL 3824254, at *4.

In response to this order plaintiff provided a letter to the defendants as follows:

On July 4, 2015, counsel for the Plaintiff emailed Defendants a one-page letter stating the following:

Please accept this letter as a supplement to Plaintiff’s prior discovery responses and in compliance with Judge Sweet’s Order of June 19, 2015. In addition to the information previously provided in responses to interrogatories, document demands, and deposition testimony, Plaintiff provides the following damage calculation:

• $50,000 salary from NYU

• $250,000 salary from Jamaica Hospital

• $110,000 in malpractice premium per year

• Loss of 401k contribution of $17,500 per year

• Health insurance premium of $301.00 per month

• Dental insurance premium of $10.18 per month

• Loss of surplus bonus from NYU/JHMC based on 80% of collections generated above salary. Plaintiff is not in possession of sufficient information to calculate the exact loss but will provide same once sufficient information is produced by defendants.

• Statutory attorneys’ fees and expenses.

Thank you for your attention to this matter.

Defendants again moved for Rule 37 sanctions seeking the dismissal of the complaint. The court granted the motion, in part.

The July 4 letter from Thompson’s counsel falls well below what is required by Rule 26. The letter consists of eight bullet points indicating the total dollar amounts requested for some of the categories of damages Thompson claims, without any analysis of where those numbers came from or identification of the supporting documentation from which they could be derived. Thompson was on notice that this sort of quick list would be insufficient; the October 22, 2014 Order required him to provide “a computation of damages, including but not limited to a specific formula indicating how plaintiff’s theory of damages is supported, along with supporting documents,” while the June 19, 2015 Opinion, which granted the Defendants’ motion for sanctions, emphasized that Rule 26 requires “both a dollar amount sought and some analysis explaining how that figure was arrived at,” and explained that a “more detailed calculation” would be required given how far this case has progressed. Thompson, 2015 WL 3824254, at *3.

Having failed to comply with his Rule 26 obligations and the Orders of this Court, the Plaintiff will be precluded from presenting any evidence with respect to damages other than that produced so far in discovery and that which is produced in accordance with this Order.

This decision is measured in tone and does give the plaintiff an opportunity to correct the failure top produce detailed damages calculations. Detailed damages calculations are important because they can lead the defendant to settle the case. At least the defendant would know what is at stake in the litigation.

In sum, this opinion is well-reasoned and thoughtful and should remind all federal court practitioners to make sure that they do their work diligently and thoroughly. Grandstanding and blustering don’t work very well in the modern federal courthouse.

Source: Thompson v. THE JAMAICA HOSPITAL MEDICAL CENTER, Dist. Court, SD New York 2015 – Google Scholar

Copyright Infringement Case Implodes Due To Rule 37(c) Violations

BWP MEDIA USA INC. v. RICH KIDS CLOTHING COMPANY, LLC, Dist. Court, WD Washington 2015 – Google Scholar.

This is a fairly routine case in which BWP sued Rich Kids alleging that Rich Kids infringed its copyrights on three photographs. To support its claim of copyright infringement, BWP produced three screen shots of Rich Kids’ website allegedly showing that BWP’s photographs were copied without permission.

Rich Kids responded to the motion for summary judgment by arguing that the screen-grab exhibit should be stricken because it was not produced during discovery. Rich Kids also filed its own summary judgment motion in which it argued that BWP failed to produce admissible evidence upon which a reasonable jury could find copyright infringement.

The district court granted Rich Kids’ motion for summary judgment based on its finding that BWP violated Rule 37. That finding was, in turn, based on a finding that BWP had failed to comply with the Rule 26(a)(1)(A) automatic disclosure requirements. The Court explained:

“Federal Rule of Civil Procedure 26(a)(1)(A) requires a party to make certain initial disclosures to other parties “without awaiting a discovery request[.]” Those disclosures include “a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims[.]” Fed. R. Civ. P. 26(a)(1)(A)(ii). Parties are further required, under Rule 26(e), to supplement or correct initial disclosures on an ongoing basis.

In this case, BWP indicated in its initial disclosures its “possession of materials relevant to Defendant’s commission of copyright infringement on its website, including digital files of screen shots of the website depicting Defendant’s commission of copyright infringement.” (Dkt. 28-1 at 3.) No materials were included in the disclosures. RKCC submits evidence showing it sought production of the materials identified in plaintiff’s initial disclosures, and that BWP failed to comply with that request. Specifically, in an email dated October 30, 2014, the deadline for filing discovery-related motions and some two weeks prior to the close of discovery, counsel for RKCC reminded counsel for BWP that he had “never received any documents at all from BWP[,]” other than the exhibit attached to the complaint, described above. (Dkt. 24-1 at 2.) Defendant’s counsel indicated he was considering filing a motion to compel, which would be withdrawn when documents were produced. (Id.) In an email later that same day, RKCC’s counsel reiterated:

As to the documents, I’m referring to any documents envisioned by the initial disclosure rules “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use [sic] to support its claims or defenses, unless the use would be solely for impeachment[.]”

(Dkt. 24-1 at 3.) He added: “Of course, if BWP doesn’t plan to rely on any documents other than the pleadings to support its claims, that’s fine. I guess I would just ask for confirmation.” (Id.) Counsel for RKCC attests that counsel forBWP provided the requested confirmation by telephone that BWP would not rely on any documents other than those included in the pleadings. (Dkt. 24, ¶4.)


In sum, the Court concludes that, pursuant to Rule 37(c), BWP is foreclosed from relying on the evidence attached to its motion for summary judgment and is restricted to relying on the evidence attached to its complaint and/or otherwise properly produced during the course of discovery. Within that framework, the Court proceeds to the pending motions for summary judgment.”

The court held that BWP violated Rule 26 by failing to disclose the screen-grab exhibit and held that, pursuant to Rule 37(c), BWP had no admissible evidence to support its claims of copyright infringement.

Separately, the Court denied Rich Kids’ motion for Rule 11 sanctions because Rich Kids did not comply with the safe harbor (providing the other party 21 days in which to withdraw the claims) and did not file the sanctions motion as a separate motion.

In sum, an excellent opinion on these issues.

Edward X. Clinton, Jr.

Plaintiff Loses Discrimination Claim – But Prevails On Sanctions Claim

Gibson v. SOLIDEAL USA, INC., Court of Appeals, 6th Circuit 2012 – Google Scholar.

The plaintiff filed a discrimination claim – alleging that he was fired because of his filing of a workers compensation claim. He did not take discovery or obtain affidavits of any kind. As a result, the former employer obtained summary judgment.

The employer’s motion for sanctions was denied and the denial was affirmed in an unpublished opinion.

The 9th Circuit explained:

“As an initial general proposition, we are not entirely unsympathetic to Solideal’s position. Statutes designed to empower employees in the vindication of their rights may, at times, be used as bases on which a plaintiff asserts claims that are later determined to be without merit. Undeniably, large employers may be forced to incur significant litigation expenses in defending against such claims. However, if this Court were to follow the course now advocated by Solideal, it would effectively hold that a plaintiff who elects to forgo formal discovery and whose claims are unable to withstand summary judgment is responsible for paying all fees and costs the defendant incurred in connection with the litigation. This is a bridge too far.”

Edward X. Clinton, Jr.

Seventh Circuit Holds That Defendant Failed To Disclose Expert Witness – New Trial

Tribble v. Evangelides, 670 F. 3d 753 – Court of Appeals, 7th Circuit 2012 – Google Scholar.

In a case against two Chicago police officers, the Seventh Circuit has held that the defendant failed to make a proper disclosure of the opinions of an expert witness.

The case was a false arrest case. The charges were dismissed by the Circuit Court of Cook County. The defendants sought to call an Assistant State’s Attorney as an expert witness. The court found that the witness did offer expert testimony and that the plaintiff was prejudiced by the testimony.

The court explained:

“Rule 26(a)(1) requires, among other things, the disclosure of the names and addresses of fact witnesses. Rule 26(a)(2) requires that expert witnesses be disclosed. That duty to disclose a witness as an expert is not excused when a witness who will testify as a fact witness and as an expert witness is disclosed as a fact witness. Musser, 356 F.3d at 757. This is a strict but well-founded requirement: “Knowing the identity of the opponent’s expert witnesses allows a party to properly prepare for trial.” Id. Without proper disclosures, a party may miss its opportunity 760*760 to disqualify the expert, retain rebuttal experts, or hold depositions for an expert not required to provide a report. Id. at 758. Because of these and other ways a party may be prejudiced by an improperly disclosed expert, the sanction is severe. Under Rule 37(c)(1) “exclusion of non-disclosed evidence is automatic and mandatory… unless non-disclosure was justified or harmless.” Musser, 356 F.3d at 758.

In this case, non-disclosure was neither justified nor harmless. Well before trial defendants announced that they wanted to have an ASA (or the law student who acted as one) testify about the significance of a no probable cause finding at Branch 50. But, crucially, the district court specifically ruled that it would not allow such testimony—it would not allow testimony that charges like Tribble’s are traditionally thrown out. Disagreement with that ruling or a belief that such testimony would be lay and not expert opinion (or no opinion at all) is not justification; at best, it’s just a misunderstanding of law. Musser, 356 F.3d at 757.

And non-disclosure was not harmless.”

The court explained that the testimony was prejudicial because the plaintiff was deprived of the opportunity to get testimony from a rebuttal expert.

Comment: the expert disclosure rules require that the lawyer exercise a great deal of judgment. He has to think about what testimony is needed and, critically, what “fact” witnesses are really giving expert testimony.

Edward X. Clinton, Jr.

Robinson v. CHAMPAIGN UNIT 4 SCHOOL DISTRICT, Court of Appeals, 7th Circuit 2011 – Google Scholar

Robinson v. CHAMPAIGN UNIT 4 SCHOOL DISTRICT, Court of Appeals, 7th Circuit 2011 – Google Scholar.

This is an unpublished opinion of the Seventh Circuit reversing the district court’s decision to dismiss a lawsuit on the basis that the Rule 26(a) disclosures were insufficient.

The plaintiff sued the defendant school district claiming wrongful termination of employment based upon race discrimination and retaliation.  The plaintiff was a pro se litigant who argued that she did comply with the rules and make appropriate disclosures.

In the Seventh Circuit, the district court’s rule 37 sanctions are reviewed for abuse of discretion.  See Greviskes v. Univ. Research Ass’n, Inc., 417 F.3d 752, 758-59 (7th Cir. 2005).  The court noted that “dismissal with prejudice is an extreme sanction that should be used only as a last resort in situations where the noncomplying party displayed willfulness, bad faith or fault.”

Here, the decision was reversed because the district court failed to adequately explain the basis for its ruling.  “We do not see in the record before us a clear explanation of how Robinson failed to comply with Rule 26(a)(1). She submitted a timeline that set out the events underlying her complaint and listing the persons present during each incident she deems significant. She also states in her complaint that she is seeking back pay, a straightforward category of damages that the school district may easily compute. Cf. Design Strategy, Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006) (explaining that damages computation is especially necessary when plaintiff seeks complex damages such as lost profits)….We see no reason why Robinson’s disclosures were insufficient to allow the school district to commence discovery—particularly given that the majority of her proposed witnesses are current or former employees of the school district—and so the school district’s argument that it has been prejudiced is unpersuasive. Even in cases of prejudice, district courts must consider and explain why lesser sanctions would be ineffective before dismissing a case. See Maynard, 332 F.3d at 468. Although Robinson had already been sanctioned once by requiring her to pay a portion of the school district’s attorney fees, the judge did not explain why barring Robinson from calling the witnesses she failed to provide information on—the sanction recommended by Rule 37(c)(1)—or limiting her possible recovery to back pay for failure to provide a detailed computation of other categories of damages would beinsufficient to cure any prejudice to the defendants.”

Comment: this is a thoughtful opinion of use to anyone resisting a Rule 37 motion for sanctions.  It is unfortunate that it was not published.

Edward X. Clinton, Jr.