1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICK D. FOX, No. 1:22-cv-01197-DAD-SCR 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS PURSUANT TO RULE 14 EXPERIAN INFORMATION 37(c) OF THE FEDERAL RULES OF CIVIL SOLUTIONS, INC., PROCEDURE 15 Defendant. (Doc. No. 95) 16
17 18 This matter is before the court on plaintiff Rick Fox’s motion for exclusionary sanctions 19 pursuant to Federal Rule of Civil Procedure 37(c). (Doc. No. 95.) For the reasons explained 20 below, plaintiff’s motion will be denied. 21 BACKGROUND 22 On September 21, 2022, plaintiff filed a complaint in this federal court initiating this 23 consumer protection action. (Doc. No. 1.) On October 31, 2024, the undersigned issued a 24 scheduling order that ordered fact discovery to be completed by December 31, 2024 and all 25 expert discovery be completed by March 31, 2025. (Doc. No. 70 at 3–4.) While discovery was 26 on-going, plaintiff propounded a number of requests for production (“RFP”) on defendant. (Doc. 27 No. 95-3 at 2.) Among those RFPs included request number 33, which asked that defendant: 28 ///// 1 Produce all communications between you and any subscriber that received Fraud Shield notices communicating that Plaintiff’s Social 2 Security Number was recorded as deceased which contain information about how the subscriber should properly understand 3 and use the Fraud Shield product. This Request includes, without limitation, any evidence that any such communications were ever 4 actually sent, received, or acknowledged by the subscriber. 5 (Id. at 8.) Defendant objected to this RFP as “unduly burdensome and overbroad[,]” “vague and 6 ambiguous[,]” that it requests information that is not in defendant’s “possession, custody, or 7 control[,]” and further objected “to the extent that it seeks confidential, proprietary, privileged, 8 and/or trade secret information.” (Id.) Defendant ultimately agreed to produce “certain 9 responsive communications between Experian and Capital One Financial Corp., Wells Fargo 10 Bank, and Santander Consumer USA, Inc.” (Id. at 9.) 11 During the week of March 24, 2025, plaintiff’s counsel, James Ristvedt (“Ristvedt”) 12 prepared for the deposition of defendant’s Rule 26 expert, Kimberly Cave (“Cave”). (Doc. No. 13 95-4 at 4.) During that preparation, Ristvedt recalled that Wells Fargo training documents were 14 produced during discovery in a separate case that he was involved in brought against defendant 15 that had since settled. (Id.) During her deposition, Ristvedt asked Cave a number of questions 16 about the Wells Fargo training documents, but because Ristvedt did not have a copy of them with 17 him, Cave was unable to recall much about that topic during that line of questioning. (Id.) 18 During an April 7, 2025 phone call with defense counsel, Ristvedt requested that defense 19 counsel produce the Wells Fargo training documents. (Id.) On May 5, 2025, Ristvedt sent 20 defense counsel, Kevin Hasenfang (“Hasenfang”), an email stressing that the Wells Fargo 21 training documents should have been disclosed in response to RFP number 33. (Doc. No. 95-8 at 22 2.) Ristvedt further stated that the Wells Fargo training documents show that Cave led a training 23 which communicated to Wells Fargo that Fraud Shield data is included in the credit report. (Id.) 24 Hasenfang replied to Ristvedt’s email and indicated defendant would not produce the documents. 25 (Id.) 26 Sometime in April 2025, Hasenfeng reviewed the Wells Fargo training documents 27 requested by plaintiff and observed that the request encompassed nearly 100 pages and the 28 documents mention Fraud Shield on one page as part of an example. (Doc. No. 103-1 at ¶¶ 2, 5.) 1 Plaintiff filed the pending motion to exclude on June 9, 2025. (Doc. No. 95.) Defendant 2 filed its opposition thereto on June 23, 2025. (Doc. No. 103.) Plaintiff filed his reply in support 3 of his motion to exclude on July 3, 2025. (Doc. No. 111.) 4 LEGAL STANDARD 5 Under Rule 37(c)(1) of the Federal Rules of Civil Procedure: 6 If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information 7 or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In 8 addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: 9 (A) may order payment of the reasonable expenses, including 10 attorney's fees, caused by the failure; 11 (B) may inform the jury of the party’s failure; and 12 (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). 13 14 Fed. R. Civ. P. 37. Under Rule 26(a) of the Federal Rules of Civil Procedure, each party must 15 provide in their initial required disclosures “a copy--or a description by category and location--of 16 all documents, electronically stored information, and tangible things that the disclosing party has 17 in its possession, custody, or control and may use to support its claims or defenses, unless the use 18 would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii). Under subsection e of Rule 19 26, a party who has made a Rule 26(a) initial disclosure or has responded to a request for 20 production must supplement or correct its disclosure or response “in a timely manner if the party 21 learns that in some material respect the disclosure or response is incomplete or incorrect, and if 22 the additional or corrective information has not otherwise been made known to the other parties 23 during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). 24 “Rule 37 ‘gives teeth’ to Rule 26’s disclosure requirements by forbidding the use at trial 25 of any information that is not properly disclosed.” Goodman v. Staples The Off. Superstore, LLC, 26 644 F.3d 817, 827 (9th Cir. 2011) (citation omitted). It is “self-executing,” “automatic[,]” and 27 intended to strongly incentivize disclosure of material. Yeti by Molly, Ltd. v. Deckers Outdoor 28 Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). “The Advisory Committee Notes clarify that Rule 1 37(c)(1) is a self-executing provision for failure to make a disclosure required by Rule 26(a), 2 without need for a motion to compel sanction.” Todd v. LaMarque, No. 03-cv-03995-SBA, 2007 3 WL 3168272, at *1 (N.D. Cal. Oct. 25, 2007). “The automatic nature of the rule’s application 4 does not mean that a district court must exclude evidence that runs afoul of Rule 26(a) or (e) . . . 5 Rather, the rule is automatic in the sense that a district court may properly impose an exclusion 6 sanction where” the violating party does not show that their failure to disclose was either 7 substantially justified or harmless. Merch. v. Corizon Health, Inc., 993 F.3d 733, 740 (9th Cir. 8 2021) (citing Yeti by Molly, 259 F.3d at 1106–07). District courts are given “particularly wide 9 latitude” in exercising their discretion to issue sanctions pursuant to Rule 37(c)(1). Hoffman v. 10 Constr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICK D. FOX, No. 1:22-cv-01197-DAD-SCR 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS PURSUANT TO RULE 14 EXPERIAN INFORMATION 37(c) OF THE FEDERAL RULES OF CIVIL SOLUTIONS, INC., PROCEDURE 15 Defendant. (Doc. No. 95) 16
17 18 This matter is before the court on plaintiff Rick Fox’s motion for exclusionary sanctions 19 pursuant to Federal Rule of Civil Procedure 37(c). (Doc. No. 95.) For the reasons explained 20 below, plaintiff’s motion will be denied. 21 BACKGROUND 22 On September 21, 2022, plaintiff filed a complaint in this federal court initiating this 23 consumer protection action. (Doc. No. 1.) On October 31, 2024, the undersigned issued a 24 scheduling order that ordered fact discovery to be completed by December 31, 2024 and all 25 expert discovery be completed by March 31, 2025. (Doc. No. 70 at 3–4.) While discovery was 26 on-going, plaintiff propounded a number of requests for production (“RFP”) on defendant. (Doc. 27 No. 95-3 at 2.) Among those RFPs included request number 33, which asked that defendant: 28 ///// 1 Produce all communications between you and any subscriber that received Fraud Shield notices communicating that Plaintiff’s Social 2 Security Number was recorded as deceased which contain information about how the subscriber should properly understand 3 and use the Fraud Shield product. This Request includes, without limitation, any evidence that any such communications were ever 4 actually sent, received, or acknowledged by the subscriber. 5 (Id. at 8.) Defendant objected to this RFP as “unduly burdensome and overbroad[,]” “vague and 6 ambiguous[,]” that it requests information that is not in defendant’s “possession, custody, or 7 control[,]” and further objected “to the extent that it seeks confidential, proprietary, privileged, 8 and/or trade secret information.” (Id.) Defendant ultimately agreed to produce “certain 9 responsive communications between Experian and Capital One Financial Corp., Wells Fargo 10 Bank, and Santander Consumer USA, Inc.” (Id. at 9.) 11 During the week of March 24, 2025, plaintiff’s counsel, James Ristvedt (“Ristvedt”) 12 prepared for the deposition of defendant’s Rule 26 expert, Kimberly Cave (“Cave”). (Doc. No. 13 95-4 at 4.) During that preparation, Ristvedt recalled that Wells Fargo training documents were 14 produced during discovery in a separate case that he was involved in brought against defendant 15 that had since settled. (Id.) During her deposition, Ristvedt asked Cave a number of questions 16 about the Wells Fargo training documents, but because Ristvedt did not have a copy of them with 17 him, Cave was unable to recall much about that topic during that line of questioning. (Id.) 18 During an April 7, 2025 phone call with defense counsel, Ristvedt requested that defense 19 counsel produce the Wells Fargo training documents. (Id.) On May 5, 2025, Ristvedt sent 20 defense counsel, Kevin Hasenfang (“Hasenfang”), an email stressing that the Wells Fargo 21 training documents should have been disclosed in response to RFP number 33. (Doc. No. 95-8 at 22 2.) Ristvedt further stated that the Wells Fargo training documents show that Cave led a training 23 which communicated to Wells Fargo that Fraud Shield data is included in the credit report. (Id.) 24 Hasenfang replied to Ristvedt’s email and indicated defendant would not produce the documents. 25 (Id.) 26 Sometime in April 2025, Hasenfeng reviewed the Wells Fargo training documents 27 requested by plaintiff and observed that the request encompassed nearly 100 pages and the 28 documents mention Fraud Shield on one page as part of an example. (Doc. No. 103-1 at ¶¶ 2, 5.) 1 Plaintiff filed the pending motion to exclude on June 9, 2025. (Doc. No. 95.) Defendant 2 filed its opposition thereto on June 23, 2025. (Doc. No. 103.) Plaintiff filed his reply in support 3 of his motion to exclude on July 3, 2025. (Doc. No. 111.) 4 LEGAL STANDARD 5 Under Rule 37(c)(1) of the Federal Rules of Civil Procedure: 6 If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information 7 or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In 8 addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: 9 (A) may order payment of the reasonable expenses, including 10 attorney's fees, caused by the failure; 11 (B) may inform the jury of the party’s failure; and 12 (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). 13 14 Fed. R. Civ. P. 37. Under Rule 26(a) of the Federal Rules of Civil Procedure, each party must 15 provide in their initial required disclosures “a copy--or a description by category and location--of 16 all documents, electronically stored information, and tangible things that the disclosing party has 17 in its possession, custody, or control and may use to support its claims or defenses, unless the use 18 would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii). Under subsection e of Rule 19 26, a party who has made a Rule 26(a) initial disclosure or has responded to a request for 20 production must supplement or correct its disclosure or response “in a timely manner if the party 21 learns that in some material respect the disclosure or response is incomplete or incorrect, and if 22 the additional or corrective information has not otherwise been made known to the other parties 23 during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). 24 “Rule 37 ‘gives teeth’ to Rule 26’s disclosure requirements by forbidding the use at trial 25 of any information that is not properly disclosed.” Goodman v. Staples The Off. Superstore, LLC, 26 644 F.3d 817, 827 (9th Cir. 2011) (citation omitted). It is “self-executing,” “automatic[,]” and 27 intended to strongly incentivize disclosure of material. Yeti by Molly, Ltd. v. Deckers Outdoor 28 Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). “The Advisory Committee Notes clarify that Rule 1 37(c)(1) is a self-executing provision for failure to make a disclosure required by Rule 26(a), 2 without need for a motion to compel sanction.” Todd v. LaMarque, No. 03-cv-03995-SBA, 2007 3 WL 3168272, at *1 (N.D. Cal. Oct. 25, 2007). “The automatic nature of the rule’s application 4 does not mean that a district court must exclude evidence that runs afoul of Rule 26(a) or (e) . . . 5 Rather, the rule is automatic in the sense that a district court may properly impose an exclusion 6 sanction where” the violating party does not show that their failure to disclose was either 7 substantially justified or harmless. Merch. v. Corizon Health, Inc., 993 F.3d 733, 740 (9th Cir. 8 2021) (citing Yeti by Molly, 259 F.3d at 1106–07). District courts are given “particularly wide 9 latitude” in exercising their discretion to issue sanctions pursuant to Rule 37(c)(1). Hoffman v. 10 Constr. Protective Servs., Inc., 541 F.3d 1175, 1178 (9th Cir. 2008), as amended (Sept. 16, 2008). 11 DISCUSSION 12 Plaintiff argues that the court should impose exclusionary sanctions against defendant 13 pursuant to Rule 37(c)(1) for failing to produce the Wells Fargo training documents in discovery. 14 (Doc. No. 95 at 3.) Specifically, plaintiff argues that these documents should have been included 15 in defendant’s response to RFP number 33. (Id.) In its opposition to plaintiff’s request, 16 defendant argues that plaintiff’s motion should be denied because Rule 26(a) and (e) do not apply 17 under the circumstances, and therefore, sanctions cannot be awarded pursuant to Rule 37(c)(1). 18 (Doc. No. 103 at 5.) Defendant further argues that Rule 26(a) does not apply because defendant 19 does not intend to use the Well Fargo training documents in support of its case and that Rule 20 26(e) does not apply because its response to RFP number 33 was not incorrect or incomplete. 21 (Id.) In his reply, plaintiff argues that defendant should have produced the document at issue as 22 responsive to RFP number 33 and its failure to do so was in violation of Rule 26. 23 As discussed above, Rule 37(c)(1) provides for exclusionary sanctions “[i]f a party fails to 24 provide information or identify a witness as required by Rule 26(a) or (e) . . . unless the failure 25 was substantially justified or is harmless.” Fed. Rule. Civ. Pro. 37(c)(1). As relevant here, Rule 26 26(e) requires a party who has responded to a request for production to “supplement or correct” 27 its response “if the party learns that in some material respect the disclosure or response is 28 incomplete or incorrect. . . .” Fed. Rule. Civ. Pro. 26(e)(1)(A). 1 The parties dispute whether defendant’s disclosure in response to plaintiff’s RFP number 2 33 was incomplete or incorrect in a material respect. Plaintiff argues that RFP number 33 3 necessarily included the document at issue within the scope of that request (Doc. No. 95 at 6–7), 4 while defendant argues that the document does not include information “about how Wells Fargo 5 should ‘properly understand and use the Fraud Shield product’” and is therefore not responsive to 6 plaintiff’s RFP number 33 (Doc. No. 103 at 3). Notably, neither party has provided the document 7 at issue to the court for its review. The court is therefore unable to determine whether 8 defendant’s disclosure in response to RFP number 33 was incomplete or incorrect in a material 9 respect such that it violated Rule 26(e). For this reason, the court will deny plaintiff’s motion for 10 exclusionary sanctions pursuant to Rule 37(c)(1). 11 The court notes that while plaintiff was not required to file a motion to compel prior to 12 requesting exclusionary sanctions,1 plaintiff’s failure to promptly move to compel the production 13 of the documents during discovery has prejudiced his claim because the court is now unable to 14 evaluate the relevance of the Wells Fargo training documents at issue. However, even if the 15 documents had been submitted to the court in support of the pending motion, the court would be 16 within its discretion to decline to order exclusionary sanctions under the circumstances of this 17 case. See McFadden v. City of Bakersfield, No. 1:23-cv-01421-JLT-CDB, 2025 WL 35933, at *2 18 (E.D. Cal. Jan. 6, 2025) (“Defendants decision to forego timely seeking the Court’s assistance 19 through a motion to compel after suggesting Plaintiff’s nondisclosure of the stipulated judgment 20 violated Rule 26 undermines their arguments concerning harm and prejudice.”); Krause v. 21 Hawaiian Airlines, Inc., No. 2:18-cv-00928-JAM-AC, 2019 WL 13225251, at *4 (E.D. Cal. June 22 7, 2019) (declining to order exclusionary sanctions “in an effort to deter what could be perceived 23 as an attempt to scuttle [the opposing party’s] case on procedural grounds when ample time 24 1 As discussed above, the Federal Rules do not require a party to file a motion to compel prior to 25 requesting exclusionary sanctions. See Silver State Broad., LLC v. Bergner, 705 F. App’x 640, 641 (9th Cir. 2017) (holding that because “Rule 37(c)(1) establishes an automatic exclusion 26 sanction” for violations of Rule 26(a)(1)(A)(iii), the aggrieved party did not need to compel 27 disclosure before seeking sanctions)); Krause, 2019 WL 13225251, at *4, n. 3 (“Because the Federal Rules do not require a prior motion to compel as a predicate to exclusion sanctions, the 28 undersigned does not find that defendant ‘waived’ its right to bring the instant motion to strike.”). 1 | remained to cure the nondisclosure” where the defendant delayed one month before filing a 2 | motion for exclusionary sanctions). Here, during the week of March 24, 2025, plaintiff's counsel 3 || recalled the existence of the document at issue while preparing for the deposition of defendant’s 4 | expert Kimberly Cave. (Doc. No. 95-4 {§ 5-6.) Plaintiff requested the document from 5 | defendant’s counsel via phone call on April 7, 2025, and email on April 21, 2025. (/d. at ¥ 8.) 6 | Defendant’s counsel stated defendant would not produce the document via email on May 5, 2025. 7 | Cd.) Plaintiff filed this motion on June 9, 2025, over one month after defendant’s counsel stated 8 | they would not produce the document and at least two months after plaintiffs counsel recalled its 9 | existence. 10 Plaintiff's motion for exclusionary sanctions will be denied without prejudice because the 11 || court is unable to determine, based upon the documents before the court, whether defendant’s 12 | response to RFP number 33 violated Rule 26(e). Plaintiff has requested leave to file a motion to 13 | compel the document at issue in the event the court denied his motion. (Doc. No. 95 at 1.) The 14 | court will also deny that request because discovery in this action had closed under the court’s 15 | scheduling order when plaintiff filed the pending motion. 16 CONCLUSION 17 For the reasons explained above, plaintiff's motion for exclusionary sanctions pursuant to 18 | Rule 37(c) (Doc. No. 95) is DENIED. 19 IT IS SO ORDERED. | Dated: _ March 31, 2026 Da A. 2, axel 21 DALE A. DROZD > UNITED STATES DISTRICT JUDGE
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