United States Postal Service v. City of Berkeley

Filing 146

ORDER GRANTING 124 MOTION TO STRIKE by Judge William Alsup. (whalc2, COURT STAFF) (Filed on 1/23/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES POSTAL SERVICE,

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For the Northern District of California

United States District Court

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No. C 16-04815 WHA

Plaintiff,
v.
ORDER GRANTING
MOTION TO STRIKE

CITY OF BERKELEY,
Defendant.
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In its opposition to the United States Postal Service’s motion for summary judgment, the

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City of Berkeley supplied a declaration from Alex Amoroso, Secretary of the City’s Planning

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Commission. Amoroso’s declaration claimed, “Proceedings of Regular and Special Meetings

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of the City Planning Commission are recorded in electronic audio files, which are maintained

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on City servers,” and appended transcribed excerpts of four such meetings that Amoroso

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attended (Dkt. No. 110-2). The USPS claims the City never disclosed or produced the audio

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files or transcripts referenced by Amoroso during discovery, and accordingly moves to strike

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the declaration and preclude the City from relying on the files (Dkt. No. 124).

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Federal Rule of Civil Procedure 37(c)(1) provides, “If a party fails to provide

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

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that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the

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failure was substantially justified or is harmless. In addition to or instead of this sanction, the

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court, on motion and after giving an opportunity to be heard: (A) may order payment of the

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reasonable expenses, including attorney’s fees, caused by the failure; (B) may inform the jury of

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the party’s failure; and (C) may impose other appropriate sanctions.”

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Here, the City does not dispute that it failed to disclose or produce the files but

131 at 4–5). But inadvertence does not give the City a free pass to use evidence not properly

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disclosed or produced to the opposing side. Second, the City contends the USPS should have

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deduced the existence of the files and inquired about them because the USPS knew about the

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underlying Planning Commission meetings (id. at 5–7). This is a non sequitur. There is no

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reason to believe the USPS knew of the existence of the specific files at issue. The City, not the

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USPS, bore the responsibility for disclosing and producing those files. Third, the City seems to

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For the Northern District of California

nevertheless opposes the motion. First, the City claims its failure was inadvertent (Dkt. No.

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United States District Court

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complain that the USPS did not describe the progress of document production with sufficient

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detail at a prior hearing (Dkt. No. 131 at 7–8). This complaint has no discernible relevance to

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the issue at hand. Fourth, the City contends the USPS cannot be prejudiced because, according

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to the City, the evidence in question “is irrelevant to the Service’s claims” (id. at 8–9). Yet the

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City nevertheless attempts to use that evidence at least to some extent in its opposition brief. To

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that extent, the prejudice to the USPS remains. Fifth, the City baldly asserts that any prejudice

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could be cured by a short continuance to allow the USPS to file an amended reply brief (id. at

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9–10). As the USPS points out, however, it still did not have the benefit of the evidence in

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question during discovery or in the preparation of its motion for summary judgment. The City’s

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proposed remedy provides no answer for this prejudice.

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Under these circumstances, this order finds that the City’s failure to disclose and

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produce the evidence in question was not substantially justified or harmless, and accordingly

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GRANTS the USPS’s motion to strike. The Amoroso declaration and its exhibits are STRICKEN

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from the City’s opposition brief. The City will not be permitted to rely on this evidence at trial.

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IT IS SO ORDERED.

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Dated: January 23, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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