Glynn v. City of Stockton

Filing 88

ORDER signed by District Judge Kimberly J. Mueller on 1/11/2017 GRANTING in PART and DENYING in PART 52 Motion for Sanctions. GRANTING that defendant may not use these documents or new information contained in the documents at trial. The court DENI ES plaintiff's requests that the court inform the jury of defendant's late disclosure and DENIES plaintiff's requests that the court order defendant to conduct a further search of its records. The court DENIES plaintiff's request to grant her attorney's fees. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSICA GLYNN,

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No. 2:15-cv-00529-KJM-DB

Plaintiff,
v.

ORDER

CITY OF STOCKTON,
Defendant.

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On September 8, 2016, plaintiff Jessica Glynn filed a motion for sanctions. (Pl.’s

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Mot., ECF Nos. 52, 53.) In her motion, plaintiff argues she is entitled to sanctions under Federal

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Rule of Civil Procedure (“FRCP”) 37(c)(1) because defendant City of Stockton failed to disclose

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eight pages of documents during discovery. (See Pl.’s Mot.) Defendant opposes plaintiff’s

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motion. (Def.’s Opp’n, ECF No. 61.)

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In this case, the parties were required to fulfill their discovery requirements under

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FRCP 26(a) and (e) by February 29, 2016. (Pretrial Scheduling Order at 2, ECF No. 10.)

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However, on August 1, 2016, more than five months after the discovery cut-off, defendant

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produced additional discovery regarding an email chain: documents Bates-stamped 0009040–

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009042. (McCoy Decl. ¶ 16, ECF No. 54.) On August 11, 2016, defendant produced additional

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documents, Bates-stamped 0009043–009044, regarding the same email chain. (Id. ¶ 28.) On the
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same day, plaintiff discovered defendant had not produced documents bates-stamped 007809–

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007811; defendant immediately produced these documents. (Id. ¶¶ 37–38; Ex. G, Horiuchi Decl.,

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ECF No. 61-2.) Defendant does not dispute the late disclosure of these documents. (See Def.’s

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Opp’n at 7.)

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FRCP 37(c)(1) provides: “If a party fails to provide information or identify a

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witness as required by Rule 26(a) or (e), the party is not allowed to use that information or

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witness to supply evidence . . . at a trial, unless the failure was substantially justified or is

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harmless.” The Ninth Circuit explains that “[t]he party facing sanctions bears the burden of

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proving that its failure to disclose the required information was substantially justified or is

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harmless.” R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012).

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Defendant argues that the late production of the eight pages of documents was

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harmless because plaintiff was aware of the substance of the information contained in these

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documents. (Def.’s Opp’n at 7.) To support its argument, defendant contends that plaintiff either

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was aware of the substance of the emails or was a party to the email chains. (Id. at 7–9.)

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However, even if plaintiff knew generally the content of these emails, knowledge the parties

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dispute, defendant has not shown that plaintiff knew of the specific information the emails

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contain. Defendant also suggests that, because the documents are Bates-stamped in succession,

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plaintiff should have identified the gap in Bates-stamped documents 7809–11 closer in time to

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when the documents were produced on July 31, 2015. (Def.’s Opp’n at 11; Ex. P, Horiuchi

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Decl.) This argument improperly attempts to shift the burden to plaintiff; the court rejects it. See

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Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 411 (E.D.N.C. 2014) (“[Defendant’s]

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various assertions about [plaintiff’s] responsibilities to independently discover the undisclosed

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agreements improperly attempt to shift the burden of discovery onto the requesting party.

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[Defendant’s] arguments are inappropriate and against the spirit and purpose of the discovery

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rules.”).

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Accordingly, defendant has not met its burden of showing that its late disclosure of

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Bates-stamped pages 9040–44 and 7809–11 was justified or harmless. In keeping with FRCP

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37(c)(1), defendant may not use these documents or new information contained in the documents
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at trial. This order does not proscribe defendant’s use of timely-disclosed information at trial,

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even if the information is duplicative in whole or part of the information contained in the

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documents excluded by this order.

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Plaintiff also asks for additional sanctions under FRCP 37(c)(1)(A)–(C), which

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provides that the court: “(A) may order payment of the reasonable expenses, including attorney’s

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fees, caused by the failure; (B) may inform the jury of the party’s failure; and (C) may impose

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other appropriate sanctions.” Plaintiff specifically requests that the court inform the jury of

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defendant’s late disclosure and declare certain acts as established, order defendant conduct a

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further search of its records to ensure no other missing documents, and reopen limited discovery.

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(Pl.’s Mot. at 20–22.) Finally, plaintiff requests that the court award her $18,450 in attorney’s

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fees caused by the late production of this discovery. (Pl.’s Mot. at 19.)

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Although defendant has not met its burden of showing that the late disclosure of

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the documents addressed here was justified or harmless, the court is not persuaded that additional

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sanctions are appropriate, particularly in light of the court’s instant order barring defendant’s use

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of the documents at trial. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106

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(9th Cir. 2001) (stating that a district court is “give[n] particularly wide latitude [and] discretion

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to issue sanctions under [FRCP] 36(c)(1)”). The court denies plaintiff’s requests that the court

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inform the jury of defendant’s late disclosure of the documents and declare certain facts as

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established as moot, and denies plaintiff’s requests that the court order defendant to conduct a

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further search of its records and to allow limited reopened discovery as unsupported by the

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record. Additionally, the court denies plaintiff’s request to grant her attorney’s fees under

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FRCP 37(c)(1)(A) in connection with this matter.

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This order resolves ECF No. 52.

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IT IS SO ORDERED.

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DATED: January 11, 2017.

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UNITED STATES DISTRICT JUDGE

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