Eisaman v. Chase Home Finance LLC (In re Eisaman)

503 B.R. 95
CourtUnited States Bankruptcy Court, N.D. Indiana
DecidedNovember 14, 2013
DocketNo. 07-12260; Proc. No. 12-1064
StatusPublished
Cited by3 cases

This text of 503 B.R. 95 (Eisaman v. Chase Home Finance LLC (In re Eisaman)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eisaman v. Chase Home Finance LLC (In re Eisaman), 503 B.R. 95 (Ind. 2013).

Opinion

DECISION AND ORDER GRANTING MOTION IN LIMINE

ROBERT E. GRANT, Bankruptcy Judge.

At Fort Wayne, Indiana, on November 14, 2013

Rule 26(a) of the Federal Rules of Civil Procedure requires litigants to voluntarily disclose certain information to the other parties to the action. The purpose for doing so is to expedite discovery. Fed. R.Civ.P. Rule 26(a)(1) Advisory Committee Note of 1993. Among other things, they are supposed to provide:

(a) Required Disclosures.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) 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 or defenses, unless the use would be solely for impeachment. Fed.R.Civ.P. Rule 26(a)(l)(A)(I), (ii).

If a party fails to do so, it may not “use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. Rule 37(c)(1). The burden of proving substantial justification or harmlessness is on the disobedient party. Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996); Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir.1998). See also, Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir.2008); Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir.2001).

[97]*97Defendant, Chase Bank, did not make any of the initial disclosures required by Rule 26(a)(1). Furthermore, although properly served with a request for the production of documents, it did not comply until August 14, 2013, two days before the parties were to submit a joint proposed pre-trial order,1 when it delivered 5,000 pages of documents to plaintiffs’ counsel. By that time, not only had the deadline for production passed, the deadline for completing all discovery had expired as well. Order dated March 21, 2013.

At trial, Chase proposes to call an “employee with personal knowledge” as a witness2 and to use loan payment histories as exhibits. See, Joint Proposed Pre-Trial Order, filed Aug. 16, 2013, pp. 16-17. Plaintiffs have filed a motion in limine asking the court to prohibit it from doing so because neither the proposed exhibits nor the not-yet-named-witness were disclosed as required. “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. U.S., 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Such matters are committed to the court’s discretion. See, David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.2003); Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir.2002); Finley, 75 F.3d at 1230.

There is no dispute that Chase failed to make the initial disclosures required by Rule 26(a) or that its eventual response to Plaintiffs’ request for production was woefully late. As a result, the only question is whether its actions were substantially justified or harmless. Finley, 75 F.3d at 1230. (“The sanction of exclusion is automatic and mandatory unless the party to be sanctioned can show that its violation of Rule 26(a) was either justified or harmless.”)

Defendant makes no attempt to justify its belated disclosure and production of documents. As for the failure to disclose witnesses, the bank states that its standard practice is to wait until a deposition or a trial has been scheduled before confirming the identity of a witness and, since plaintiffs never requested a deposition, they have not been prejudiced and so should not be heard to complain. This argument totally miscomprehends the nature of the defendant’s obligation under Rule 26(a). While the court can understand that, where several different individuals might be used to offer the same testimony, from a staffing and scheduling standpoint the bank might want to delay making a final decision as to which of them it will use until it knows when the witness will be needed; but that does not explain or justify the failure to disclose the identity of the individuals who comprise the pool from which the witness will be drawn. There seems to be no reason the defendant could not have done that. Its failure to do so deprives the plaintiffs of the opportunity to choose a particular individual [98]*98in that pool to depose, should they want to do so, as opposed to letting the defendant designate which one it will produce. As for the suggestion that somehow this is all the plaintiffs’ fault, because they never requested a deposition, that borders on frivolous. Central States, Southeast and Southwest Areas Pension Fund v. XTL Transport, Inc., 1996 WL 435136, *3 (N.D.Ill.1996). It was the Bank’s obligation to be forthcoming and disclose, not the plaintiffs to prod and nag. Furthermore, why would plaintiffs’ counsel try schedule a deposition until they had the opportunity to review the documents the defendant was supposed to produce: documents the discussion of which would undoubtedly be an important aspect of the deposition.

Defendant also argues that the plaintiffs have not been harmed by their failure to comply because the matter has not yet been set for trial. Yet, that is largely because the court chose to wait until it had decided the issues raised by any motion in limine before doing so.3 See, Order dated Aug. 21, 2013. More fundamentally, just because a matter has not been set for trial does not mean that a party has not been harmed by the opposition’s failure to comply with the discovery rules. See, Hard Surface Solutions, Inc. v. Sherwin-Williams Co., 271 F.R.D. 612, 617 (N.D.Ill.2010). Here, the time for discovery has ended and the parties are supposed to be ready to proceed to trial.

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Bluebook (online)
503 B.R. 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eisaman-v-chase-home-finance-llc-in-re-eisaman-innb-2013.