Weaver v. USDA Forest

Filing 49

ORDER Re Defendant's 43 Motion in Limine to Exclude Undisclosed Evidence, signed by Senior Judge Ronald S.W. Lew on 3/1/2013. (Defendants Motion is GRANTED.) (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 DAVID LEE WEAVER,
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Plaintiff,
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vs.
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UNITED STATES DEPARTMENT OF )
AGRICULTURE; FOREST
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SERVICE; MICHAEL JAMES
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RYAN, AND DOES 1 THROUGH
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100
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Defendants.
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CV 10-1523 RSWL
ORDER RE Defendants’
Motion in Limine To
Exclude Undisclosed
Evidence [43]

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Currently before the Court is Defendants’ Motion in

21 Limine To Exclude Undisclosed Evidence [43].

Having

22 reviewed all the papers pertaining to these Motions,
23 the Court HEREBY RULES AS FOLLOWS:
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The Court GRANTS Defendants’ Motion.

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Plaintiff is advised that he cannot present any

26 evidence that was not disclosed during discovery.
27 Under FRCP 26(a), each party must provide as part of
28 its initial disclosures
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(i) the name and, if known, the address and

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telephone number of each individual likely to have

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discoverable information--along with the subjects

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of that information--that the disclosing party may

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use to support its claims or defenses, unless the

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use would be solely for impeachment;

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(ii) a copy--or a description by category and

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location--of all documents, electronically stored

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information, and tangible things that the

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disclosing party has in its possession, custody, or

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control and may use to support its claims or

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defenses, unless the use would be solely for

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impeachment;

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(iii) a computation of each category of damages

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claimed by the disclosing party--who must also make

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available for inspection and copying as under Rule

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34 the documents or other evidentiary material,

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unless privileged or protected from disclosure, on

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which each computation is based, including

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materials bearing on the nature and extent of

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injuries suffered. . . .

24 FRCP 37(c) states that if a party fails to provide
25 information required by FRCP 26(a), the party is not
26 allowed to use that information to supply evidence at
27 trial.

The information may be introduced only if the

28 party’s failure to disclose the required information is
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1 substantially justified or harmless.

Fed. R. Civ. P.

2 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor Corp.,
3 259 F.3d 1101, 1106 (9th Cir. 2001).

The burden to

4 prove substantial justification or harmlessness lies
5 with the party facing sanctions.
6 259 F.3d at 1106-07.

Yeti by Molly Ltd.,

In determining whether to

7 preclude introduction of evidence pursuant to Federal
8 Rule of Civil Procedure 37, courts consider (1) the
9 surprise to the party against whom the evidence would
10 be offered; (2) the ability of that party to cure the
11 surprise; (3) the extent to which allowing the evidence
12 would disrupt the trial; (4) the importance of the
13 evidence, and (5) the nondisclosing party’s explanation
14 for it failure to disclose the evidence.

See Southern

15 States Rack & Fixture, Inc. v. Sherwin-Williams Co.,
16 318 F.3d 592, 596 (4th Cir. 2003).

District courts are

17 given “particularly wide latitude” to issue sanctions
18 under Rule 37(c)(1) and such sanctions may only be
19 reviewed for abuse of discretion.

Yeti by Molly Ltd.,

20 259 F.3d at 1106.
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Should Plaintiff seek to introduce any evidence

22 that he has failed to disclose during discovery, he
23 must make a showing that his failure is substantially
24 justified or harmless.
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For the foregoing reasons, the Court GRANTS

2 Defendants’ Motion.
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4 IT IS SO ORDERED.
5 DATED: March 1, 2013.
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HONORABLE RONALD S.W. LEW
Senior, U.S. District Court Judge

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