United States District Court, D. Nevada
June 19, 2014
ROBERT A. GREENE, et al., Plaintiff(s),
ALAN WAXLER GROUP CHARTER SERVICES, LLC, et al., Defendant(s)
ORDER DENYING IN PART MOTION FOR SANCTIONS (Docket No. 185)
NANCY J. KOPPE, Magistrate Judge.
Pending before the Court is Plaintiffs' motion for sanctions. Docket No. 185. Defendants filed a response and Plaintiffs filed a reply. Docket Nos. 190, 194. The Court finds the motion properly decided without oral argument. See Local Rule 78-2. For the reasons discussed more fully below, the Court hereby DENIES the motion in part.
As an initial matter, the Court notes that the motion seeks sanctions both for alleged discovery violations under Rule 37 and for alleged vexatious conduct under 28 U.S.C. § 1927 and Rule 11. See Docket No. 185 at 19-20. This order addresses only the request for sanctions under Rule 37, and a separate order will be issued addressing the request for sanctions under 28 U.S.C. § 1927 and Rule 11.
This is a wage and hour lawsuit brought on behalf of limousine drivers, filed in 2009. Although an exact date is not clear from the record, initial disclosures appear to have been due in early 2010. See Docket No. 171 at 1 & n.2. The Court subsequently extended the discovery cutoff on two occasions, but discovery closed on June 30, 2011. See Docket No. 69. On October 25, 2013, Defendants filed a motion for discovery sanctions seeking, inter alia, case-dispositive sanctions against Plaintiffs for failing to provide initial disclosures. See Docket No. 149. The undersigned granted the sanctions motion in part, but denied the requested case-dispositive sanctions. See Docket No. 171. Judge Mahan has recently denied Defendants' motion to reconsider that order. See Docket No. 196.
In the interim, Plaintiffs brought their own motion for discovery-related sanctions. Plaintiffs assert that discovery sanctions should be imposed against Defendants because (1) Defendants failed to supplement their responses to discovery requests; and (2) Defendants failed to provide initial disclosures. Plaintiffs' motion for discovery sanctions is the motion currently before the Court.
Plaintiffs make two overarching arguments in support of their motion for discovery sanctions. First, they argue that Defendants failed to supplement their responses to Plaintiffs' propounded discovery requests. Second, they argue that Defendants failed to provide initial disclosures. The Court addresses each argument in turn below.
A. Failure to Supplement Discovery Responses
On or about February 22, 2011, Defendants responded to various discovery requests propounded by Plaintiffs. See Docket Nos. 185-4, 185-5. Plaintiffs argue that Defendants should be sanctioned for failing to supplement these discovery responses. In particular, Plaintiffs argue that Defendants violated their obligation to supplement because they failed to provide class-wide information following the order certifying the class in this case. See Docket No. 185 at 9-14. Defendants counter by asserting that class-wide information was not sought in the initial discovery propounded, so they had no duty to supplement. Docket No. 190 at 6.
As an initial matter, although Plaintiffs refer to serving requests for admission, requests for production, and interrogatories, they do not identify with specificity which discovery requests they contend required supplementation following class certification. See Docket No. 185 at 8. Nonetheless, the focus of Plaintiffs' arguments relate to class-wide wage-and-hour records, see, e.g., Docket No. 185 at 3, so the Court will focus its analysis on the requests for production seeking such information.
Problematically for Plaintiffs, however, the relevant requests for production were limited to the named Plaintiffs and did not seek documents related to the claims of absent class members. See, e.g., Request for Production 1 (Docket No. 185-3) (seeking time sheets for "each of the plaintiffs named in the consolidated action of Sam Baum, et al. v. Alan Waxler, et al. (Consolidated Case No. 2:09-cv-00914) (Baum Plaintiffs')"). An obvious predicate to an obligation to supplement is that the information at issue was actually sought in the first place; the supplementation requirements in Rule 26(e) do not require "that a party volunteer information not fairly encompassed by the earlier request." Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 540 (3d Cir. 2007) (quoting In re Air Crash Disaster, 86 F.3d 498, 539 (6th Cir. 1996)). Defendants did not violate any obligation to supplement their discovery responses with class-wide information because such information was not sought in the discovery that was propounded. Accordingly, to the extent Plaintiffs seek sanctions for Defendants' purported failure to supplement their discovery responses with class-wide information, the motion is DENIED.
B. Failure to Provide Initial Disclosures
Plaintiffs also argue that Defendants failed to provide initial disclosures. When a party fails to meet its initial disclosure obligations, the Court turns to Rule 37(c) to determine whether sanctions are appropriate. Rule 37(c)(1) provides that a non-compliant party is "not allowed to use the information... at trial, unless the failure was substantially justified or harmless." The party facing the sanction has the burden of showing substantial justification or harmlessness. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001).
1. Class-Wide Wage and Hour Records
Plaintiffs argue that Defendants failed to comply with their initial disclosure obligations because they did not provide class-wide information to support Plaintiffs' claims. See, e.g., Docket No. 185 at 3 (asserting that Defendants "fail[ed] to make initial disclosures... by withholding key wage and hours records showing AWG's liability and Drivers' damages"). Defendants contend that this argument fails because Rule 26(a) does not require an initial disclosure of information necessary for the opposing party to support its claims. See Docket No. 190 at 4. The Court agrees with Defendants. The Rule very clearly requires each party to disclose information that the disclosing party "may use to support its claims or defenses." See Rule 26(a)(1)(A)(i)-(ii) (emphasis added). "This means that there is no requirement to disclose anything that the disclosing party will not use, which may include much that is harmful to its case.... [A] party is not required to disclose material that will solely aid its opponent." 8A Wright, Miller, & Marcus, FEDERAL PRACTICE AND PROCEDURE, § 2053, at 365-66 (2010) (discussing 2000 amendments); see also Harris v. Advance Am. Cash Advance Ctrs., Inc., 288 F.R.D. 170, 171 (S.D. Ohio 2012) (citing El Camino Resources, Ltd. v. Huntington Nat'l Bank, 2009 WL 1228680, *3 (W.D. Mich. Apr. 30, 2009)); In re Fort Totten Metrorail Cases, 279 F.R.D. 18, 22-23 (D.D.C. 2011). While Plaintiffs bemoan the challenge they face going to trial without discovery regarding class-wide damages, see Docket No. 185 at 6, they have not shown that Defendants were obliged to provide that information as an initial disclosure. Accordingly, to the extent Plaintiffs seek sanctions for Defendants' purported failure to provide initial disclosures with class-wide information to support Plaintiffs' claims, the motion is DENIED.
2. Witnesses and Documents Supporting Defendants' Defenses
Defendants assert that the witnesses and documents that they intend to rely upon at trial to support their defenses were previously provided to Plaintiffs, albeit not in the form of initial disclosures or by the initial disclosure deadline. See Docket No. 190 at 4 (referring to information provided in response to Plaintiffs' discovery requests). Defendants provided their discovery responses on or about February 22, 2011. See Docket Nos. 185-4, 185-5. The discovery cut-off did not expire until more than four months later, on June 30, 2011. See Docket No. 69. Hence, this information was not provided by the initial disclosure deadline, but it was provided well before the discovery cut-off.
As noted above, sanctions for failing to provide initial disclosures are not appropriately imposed where the shortcoming was substantially justified or harmless. Courts are most likely to exclude evidence first disclosed shortly before trial or substantially after discovery has closed. See, e.g., Jackson v. United Artists Theatre Circuit, Inc., 278 F.R.D. 586, 594 (D. Nev. 2011). Defendants argue that sanctions are inappropriate here because any violation was harmless, and the Court agrees. In particular, Defendants argue that they intend to rely at trial only on the information they provided during the discovery period. See Docket No. 190 at 4. Plaintiffs had full opportunity (for four months) to serve new discovery requests based on any of the information provided in February 2011, and have had ample time to prepare for trial in light of the disclosed information. Given the facts of this case, the Court finds that imposing sanctions for the late-disclosure of this information is inappropriate because the failure was harmless. Accordingly, to the extent Plaintiffs seek sanctions for Defendants' late initial disclosures, the motion is DENIED.
For the reasons discussed more fully above, Plaintiffs' motion for sanctions is hereby DENIED in part.
IT IS SO ORDERED.