United States District Court, D. Nevada
ORDER (DOCKET NO. 32)
J. KOPPE United States Magistrate Judge
motion to exclude damages evidence presents a scenario all
too familiar in this District. Plaintiff alleges that she was
injured in an incident occurring on Defendant's premises.
Plaintiff seeks damages based on her medical expenses, both
past and future, and economic damages. Plaintiff provided a
partial damages computation with her initial disclosures, and
has since supplemented the initial disclosures several times
to identify additional damages. Plaintiff contends that she
diligently obtained the information necessary to compute her
damages claims, and that she disclosed that information as
soon as reasonably possible. Defendant contends that
Plaintiff should have disclosed all of the pertinent
information with her initial disclosure, and that resorting
to serving supplemental disclosures of damages computations
prevented Defendant from proceeding effectively with its case
through discovery. As a result, Defendant contends that its
ability to defend the case has been prejudiced, and that
certain damages disclosures must be excluded under Rule
37(c)(1) of the Federal Rules of Civil Procedure.
the above scenario is frequently presented to the magistrate
judges in this District, the decisions resolving such motions
are not entirely congruous. Indeed, this difference in
interpreting the requirements for initial disclosure damages
computations, and the appropriate penalties for not complying
therewith, has already been memorialized elsewhere. See
Jones v. Wal-Mart Stores, Inc., Case No.
2:15-cv-1454-LDG-GWF, 2016 WL 1248707, at *5, 7 (D. Nev. Mar.
28, 2016) (listing cases cited by Wal-Mart and recognizing
that some of them were not consistent with the decision being
issued). Not surprisingly given this disparity, the parties
present drastically different views of the pertinent legal
landscape. As a result, the Court finds it appropriate to
discuss at some length what the Rules require for initial
disclosures and what inquiry guides the determination of an
appropriate remedy for the failure to comply with those
BRIEF FACTUAL OVERVIEW
alleges that she slipped on a gel-like substance in the bath
aisle of one of Defendant Wal-Mart's stores. See,
e.g., Docket No. 31 at 2. Plaintiff filed suit in state
court, alleging a cause of action for negligence.
Id. Defendant removed the case to this Court on the
basis of diversity jurisdiction. See Docket No. 1.
February 11, 2016, the parties filed a joint proposed
discovery plan, which the Court approved the same day. Docket
Nos. 8-9. That discovery plan and subsequent scheduling order
reflected a stipulation between the parties to exchange
initial disclosures by February 5, 2016. Docket No. 9 at 1.
The Court also set an expert disclosure deadline of May 9,
2016, a rebuttal expert disclosure deadline of June 6, 2016,
and a discovery cutoff of July 6, 2016. Docket No. 9 at 2-3.
April 19, 2016, Plaintiff moved to extend these deadlines.
Docket No. 10. The Court granted that motion in part and
extended the expert disclosure deadline to June 23, 2016, the
rebuttal expert disclosure deadline to July 22, 2016, and the
discovery cutoff to August 22, 2016. Docket No. 18 at 3. At
the same time, Plaintiff sought an order for leave to
supplement the damages computation provided with her initial
disclosures. Docket No. 10 at 3. Noting the early stage of
the litigation, the Court declined to foreclose Plaintiff
from pursuing the supplemental damages claims she had
identified. Docket No. 18 at 2.
September 8, 2016, Plaintiff filed a motion to reopen the
discovery period. Docket No. 21.The Court granted that motion
and the discovery cutoff was reset to October 6, 2016. Docket
Nos. 26, 28.
pertinent to this motion, Plaintiff served her initial
disclosures, with a damages computation, on February 22,
2016. Docket No. 34-1. Through the date of Defendant's
motion, Plaintiff supplemented her initial disclosures 19
times. See, e.g., Docket No. 34-12 at 46
(Plaintiff's nineteenth supplemental initial disclosure).
Plaintiff also served expert disclosures and eight
supplements thereto. See, e.g., Docket No. 34-17 at
10 (eighth supplement to designation of expert witnesses).
December 14, 2016, Defendant filed the instant motion to
exclude damages evidence. Docket No. 32. Plaintiff filed a
response, and Defendant filed a reply. Docket Nos. 34, 35.
Initial Disclosure Requirements
26(a)(1)(A) requires parties to provide initial disclosures
to the opposing parties without awaiting a discovery request.
The disclosures must include a computation of each category
of damages claimed by the disclosing party. Fed.R.Civ.P.
26(a)(1)(A)(iii). The purposes of the initial disclosure
requirements are important and clear. Parties should be put
on notice of the factual and legal contentions of the
opposing party, and the initial disclosure requirements
eliminate surprise and trial by ambush. See, e.g.,
Ollier v. Sweetwater Union High School Dist., 768
F.3d 843, 862-63 (9th Cir. 2014). The initial disclosure
requirements “accelerate the exchange of basic
information about the case and eliminate the paper work
involved in requesting such information.” R&R
Sails, Inc. v. Insurance Co. of Penn., 673 F.3d 1240,
1246 (9th Cir. 2012) (quoting Fed.R.Civ.P. 26, advisory
committee notes). “Moreover, early disclosure also
functions to assist the parties in focusing and prioritizing
their organization of discovery.” City & County of
San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221
(N.D. Cal. 2003). The damages computation in particular
further enables the defendant to understand the contours of
its liability exposure and, by extension, to make informed
decisions regarding settlement. Frontline Med. Assocs.,
Inc. v. Coventry Health Care, 263 F.R.D. 567, 569 (C.D.
benefits of initial disclosures are significant and courts
have a duty to enforce the initial disclosure requirements;
however, courts must apply the Rules with an eye toward
“common sense, ” keeping in mind the purposes
that the Rules are intended to accomplish. See,
e.g., Jackson v. United Artists Theatre Circuit,
Inc., 278 F.R.D. 586, 592 (D. Nev. 2011). “Rule 26
does not elaborate on the level of specificity required in
the initial damages disclosure.” Tutor-Saliba,
218 F.R.D. at 220. The level of specificity for the damages
computation varies depending on the stage of the litigation
and the claims at issue. “A party must make its initial
disclosures based on the information then reasonably
available to it.” Fed.R.Civ.P. 26(a)(1)(E). “A
computation of damages may not need to be detailed early in
the case before all relevant documents or evidence has been
obtained by the plaintiff.” Cardoza v. Bloomin'
Brands, Inc., Case No. 2:13-cv-1820-JAD-NJK, 2015 WL
3875916, at *2 (D. Nev. June 22, 2015) (quoting LT Game
Int'l Ltd. v. Shuffle Master, Inc., Case No.
2:12-cv-01216-GMN-GWF, 2013 WL 321659, at *6 (D. Nev. Jan.
28, 2013)). Just as courts eschew broad contention
interrogatories at the outset of a case as premature, the
initial damages computation is generally viewed as merely ...