Robert Kubicek Architects & Associates Incorporated v. Bosley et al

Filing 126

ORDER granting 102 Motion in Limine. Signed by Judge David G Campbell on 3/13/2013.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Kubicek Architects & Associates
Incorporated, an Arizona corporation,

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Plaintiff,

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ORDER

v.

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No. CV11-2112 PHX DGC

Bruce C. Bosley, et al.,

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Defendants.

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Plaintiff previously filed a motion in limine seeking to exclude documents 1, 5-12,

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and 14 from the list of documents included in Defendants’ January 9, 2013 exhibit letter.

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Doc. 102. The Court addressed the motion at the final pretrial conference in this case and

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deferred ruling until after Defendants had made a further filing. Doc. 121. Defendants

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have made the filing (Doc. 124), and the Court held a telephone conference with the

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parties on March 13, 2013. The Court will grant Plaintiff’s motion in limine.

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“If a party fails to provide information or identify a witness as required by Rule

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26(a) or (e), the party is not allowed to use that information or witness . . . at a trial,

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unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

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Defendants admit that they did not disclose the contested documents in their initial

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disclosure statement under Rule 26(a)(1)(A)(ii), nor did they disclose the documents in

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any supplemental disclosure statement. Rather, Defendants disclosed the documents for

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the first time on August 27, 2012, one month after the close of fact discovery in this case.

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Doc. 109-1 at 3-4.

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Defendants argue that their failure to disclose the documents was harmless. With

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respect to documents 8, 9, 11, 12, and 14, Defendants assert that the documents were

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disclosed to Plaintiff by a co-defendant (Daniel E. Scott) in state court litigation between

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the parties. Defendants attach a copy of the Scott disclosure statement provided to

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Plaintiff in 2008. Doc. 124 at 5.

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The Court concludes that disclosure by a co-defendant in a previous state court

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case does not render the failure to disclose in this case harmless. Rule 26(a)(1)(A)(ii)

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requires a party to identify documents that it may use to support its claims or defenses.

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The obvious purpose of the rule is to enable the opposing party to prepare to meet the

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disclosed documents at trial. A co-defendant’s disclosure of the same documents in a

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separate state court case did not achieve this purpose – it said nothing about whether

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Defendants in this case intended to use such documents to support their defenses.

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Defendants’ disclosure statement in this case referenced “[a]ny and all discovery,

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disclosures, court filings, depositions, trial transcripts used in Maricopa County Superior

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Court Action No. CV2007-008748.” Doc. 102 at 2. This generalized statement provided

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Plaintiff with no information about the specific documents Defendants would use in this

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case. Without such information, Plaintiff was unable to prepare for the potential use of

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the documents at trial and the failure to disclose was not harmless.

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Defendants argue that the documents identified in their January 9, 2013 exhibit

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letter consist of Plaintiff’s own documents. Because Plaintiff has possession of the

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documents, Defendants argue, Plaintiff is not prejudiced by Defendants’ failure to

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disclose them. This argument misapprehends the purpose of Rule 26(a)(1)(A)(ii). It is

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not merely to apprise the opposing party of the existence of documents; it is to tell the

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opposing party which documents may be used at trial.

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documents in its possession does nothing to inform that party that the opposing party may

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use them at trial.

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possession does not eliminate any harm resulting from non-disclosure. Plaintiff was

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unable to anticipate the use of such documents and prepare for that use during discovery.

The fact that a party has

Thus, the fact that the documents may have been in Plaintiff’s

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See Johnson v. United Parcel Serv., Inc., 236 F.R.D. 376, 378 (E.D. Tenn. 2006)

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(“Defendant is correct in its argument [that] it is not required to sift through every

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document in its possession that might possibly be relevant to Plaintiffs’ claims and

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assume they all will be presented at trial[.] Rule 26 puts the burden on the party

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intending to present a document to notify the other party of its intent to do so.”).

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Nor can the Court conclude that Defendants’ failure to disclose the documents in

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this case was substantially justified. Defendants were aware of the documents from the

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state court litigation. Indeed, the disclosures made by co-defendant Scott in the state

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court litigation were made by the attorneys who now represent Defendants in this case.

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See Doc. 124 at 5. Defendants had ample opportunity between the state court litigation in

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2008 and the disclosures in this case, which were first required in January of 2012, to

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assemble and identify the documents that would be used to support their defense at trial.

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The fact that Defendants waited more than eight months – and one month after the close

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of discovery – to make such disclosures is not substantially justified.

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Finally, Defendants argue that they should be permitted to use the documents at

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trial for impeachment purposes, in which event disclosure was not required under

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Rule 26(a)(1)(A)(ii).

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impeachment” within the meaning of the rule is a document which has value solely for

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the purpose of impeaching a witness. If the document has independent relevancy to the

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merits of the case, the document is not “solely for impeachment” and must be disclosed

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to opposing counsel.

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(impeachment evidence which is in part substantive did not fall within the “solely for

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impeachment” exceptions of Rule 26(a)); Wilson v. AM Gen. Corp., 167 F.3d 1114, 1122

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(7th Cir. 1999) (undisclosed witnesses possessing substantive knowledge of the party’s

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defenses were not “solely for impeachment” and should have been included in party’s

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Rule 26(a) mandatory pretrial disclosures).

The Court does not agree.

A document used “solely for

See Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998)

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IT IS ORDERED that Plaintiff’s motion in limine (Doc. 102) is granted.

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Defendants may not use at trial the documents identified in their January 9, 2013 letter as
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documents 1, 5-12, and 14.
Dated this 13th day of March, 2013.

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