Lockhart v. Techtronic Industries North America Incorporated

Opinion

1 WO 2 3 4 5

9 Dahlia Lockhart, No. CV-20-00938-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Techtronic Industries North America Incorporated, et al., 13 Defendants. 14 15 In response to the Court’s prior Order (Doc. 53), the parties filed a Status Report 16 (Doc. 56) stating that Plaintiff did not disclose and file the Federal Rule of Civil Procedure 17 26(a)(3) witness and exhibit lists until the present day, April 10, 2023 (Docs. 54, 55), which 18 is over seven months past the disclosure deadline of September 2, 2022 and over six months 19 past the discovery deadline in this case (Doc. 39 at 2). 20 The Court must now determine the appropriate sanction for Plaintiff’s 21 extraordinarily late disclosure. As the Court stated in its prior Order (Doc. 53), Rule 22 37(c)(1) provides, “[i]f a party fails to provide information or identify a witness as required 23 by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply 24 evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified 25 or is harmless.” The burden to show that the violation of Rule 26(a) is substantially justified 26 or harmless is on the party facing sanctions. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 27 259 F.3d 1101, 1107 (9th Cir. 2001). When evaluating substantial justification and 28 harmlessness, courts often consider (1) prejudice or surprise to the other party, (2) the 1 ability of that party to cure the prejudice, (3) the likelihood of disruption of trial, and (4) 2 willfulness or bad faith. Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 705, 713 (9th Cir. 3 2010). 4 The Court cannot fully evaluate the amount of prejudice or surprise to Defendants 5 without their input. Accordingly, the Court will ask Defendants to review Plaintiff’s Rule 6 26(a)(3) disclosures (Docs. 54, 55) and file a brief summarizing the element of prejudice 7 or surprise arising from any of the late disclosures. 8 As for willfulness or bad faith, the Court finds the conduct of Plaintiff’s counsel 9 constituted evidence of bad faith when counsel acknowledged to Defendants and the Court 10 four months ago that it had “admittedly missed the deadline to submit an exhibit and 11 witness list” and would “cure this immediately,” but never did. (Doc. 48 at 1.) Nor did 12 Plaintiff ever, over the last seven months, move for additional time or show good cause 13 therefor. The Court has considered the appropriate sanction carefully, ever mindful that a 14 sanction should be commensurate with the offense. While the inaction by Plaintiff’s 15 counsel was in complete disregard of the Court’s Scheduling Order, a sanction of the 16 exclusion of all Plaintiff’s evidence would end this case in favor of Defendants—a sanction 17 more serious than necessary. Accordingly, the Court will impose a monetary sanction on 18 counsel for Plaintiff based on the efforts Defendants expended in terms of attorneys’ fees 19 and costs in attempting to obtain Plaintiff’s Rule 26(a)(3) disclosures, including 20 Defendants’ filing of the entire Motion to Exclude (Doc. 42) and Reply thereto (Doc. 49). 21 The Court will thus also request from Defendants a statement of these costs and reasonable 22 attorneys’ fees, which may include the costs and fees of preparing the aforementioned brief 23 summarizing prejudice or surprise from Plaintiff’s late disclosures as well as the statement 24 of costs and fees itself. Plaintiff may file a Response to the statement of costs and fees, but 25 only to the extent Plaintiff can meritoriously challenge the reasonableness of the amount 26 of costs and fees identified. The Court will enter a monetary sanction upon receipt of these 27 briefs. 28 1 IT IS THEREFORE ORDERED that by April 26, 2023, Defendants shall file a || brief summarizing the element of prejudice or surprise arising from any of Plaintiff's late || disclosures (Docs. 54, 55). Plaintiff may file a Response by May 5, 2023. 4 IT IS FURTHER ORDERED that by April 26, 2023, Defendants shall file a 5 || statement of costs and reasonable attorneys’ fees in attempting to obtain Plaintiff's Rule 6 || 26(a)(3) disclosures, as further detailed in this Order. Plaintiff may file a Response by 7\| May 5, 2023, but it may only contain any meritorious challenge to the reasonableness of 8 || the amount of costs and fees identified. 9 Dated this 11th day of April, 2023. CN

11 wef hlee— Unifgd State#District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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