Rodriguez v. Akima Infrastructure Services, LLC et al
Filing
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ORDER GRANTING 54 MOTION TO EXCLUDE EVIDENCE, AND VACATING HEARING.(pjhlc1S, COURT STAFF) (Filed on 10/16/2019)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SARAH RODRIGUEZ,
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Case No. 16-cv-03607-PJH
Plaintiff,
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v.
ORDER EXCLUDING EVIDENCE AND
VACATING HEARING
AKIMA INFRASTRUCTURE
SERVICES, LLC, et al.,
Re: Dkt. No. 54
United States District Court
Northern District of California
Defendants.
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Before the court is Akima Infrastructure Services, LLC and Akima, LLC’s (together,
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“Akima”) motion for Evidentiary Sanctions, or in the Alternative, Motion to Modify the
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Scheduling Order. Dkt. 54. The matter is fully briefed and suitable for decision without
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oral argument. Accordingly, the hearing set for October 23, 2019 is VACATED. Having
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read the parties’ papers and carefully considered their arguments and the relevant legal
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authority, and good cause appearing, the court hereby GRANTS the motion for
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evidentiary sanctions, as follows.
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BACKGROUND
On May 17, 2016, plaintiff Sarah Rodriguez filed this action in the Superior Court
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of California, County of Alameda. Dkt. 1 at ECF p. 21 (“Compl.”). On June 27, 2016,
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Akima removed the action to this court. Dkt. 1. The complaint asserts three causes of
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action: (1) a claim under the federal Family and Medical Leave Act, 29 U.S.C. §§ 2601,
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et seq. ("FMLA"); (2) a claim under the California Family Rights Act, Cal. Lab. Code
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§ 12945.2; and (3) a claim alleging wrongful termination.
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The complaint alleges that plaintiff was employed by defendants as a recruiter
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from approximately October 7, 2014, until her termination on approximately October 23,
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2015. Compl. ¶ 6. She alleges that she requested a leave of absence from work due to
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the impending birth of twins, she gave birth, and she was subsequently granted and took
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a leave of absence. Id. ¶¶ 9–12. Plaintiff alleges that while she was on her approved
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leave of absence, defendants discharged her from employment. Id. ¶ 13.
Fact discovery was originally scheduled to end on February 24, 2017. Dkt. 20.
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The parties stipulated to extend that deadline to March 24, 2017. Dkts. 24–25.
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Defendants moved for summary judgment on April 7, 2017, following the close of fact
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discovery. Dkt. 32.
On May 19, 2017, this court granted defendants’ motion for summary judgment.
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United States District Court
Northern District of California
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See Dkts. 37–38. Plaintiff appealed the order, and the Ninth Circuit found that “a genuine
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dispute of material fact exists regarding whether Akima replaced her [plaintiff] while she
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was on leave under the” FMLA. Dkt. 42 at 2. The Ninth Circuit accordingly reversed this
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court’s order granting defendants’ motion for summary judgment, and it remanded the
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action. Id. The Ninth Circuit’s mandate issued on January 31, 2019. Dkt. 43.
On February 21, 2019, this court conducted a case management conference with
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the parties. See Dkt. 46 (minute entry). At that conference, the parties informed the
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court that all fact discovery had been completed, although defendant may need to
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supplement. Id. The court set deadlines for expert discovery and scheduled trial to begin
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on December 9, 2019. Id.; see also Dkt. 47 (case management and pretrial order). Fact
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discovery remained closed.
On April 22, 2019, plaintiff produced for the first time certain emails and related
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documents. See Iskander Decl., Dkt. 54-1 ¶ 6 & Ex. C. On September 3, 2019, in
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response to plaintiff’s production of records after the close of discovery, defendants filed
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the present motion for evidentiary sanctions to exclude those materials. Dkt. 54.
DISCUSSION
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A.
Legal Standard
Federal Rule of Civil Procedure 26 (“Rule 26”) requires, “[e]xcept as exempted by
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Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court,” that “a party must,
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without awaiting a discovery request, provide to the other parties . . . . a copy—or a
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description by category and location—of all documents, electronically stored information,
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and tangible things that the disclosing party has in its possession, custody, or control and
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may use to support its claims or defenses, unless the use would be solely for
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impeachment[.]” Fed. R. Civ. P. 26(a)(1)(A)(ii).
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Rule 26(e) requires a party to “supplement or correct its [Rule 26(a)] disclosure . . .
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in a timely manner if the party learns that in some material respect the disclosure or
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response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in
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United States District Court
Northern District of California
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writing[.]” Fed. R. Civ. P. 26(e)(1)(A).
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“Compliance with Rule 26’s disclosure requirements is ‘mandatory.’” Ollier v.
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Sweetwater Union High Sch. Dist., 768 F.3d 843, 863 (9th Cir. 2014) (quoting Ecuador v.
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Mackay, 742 F.3d 860, 865 (9th Cir. 2014)).
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“Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of
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any information required to be disclosed by Rule 26(a) [or Rule 26(e)] that is not properly
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disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.
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2001); accord Ollier, 768 F.3d at 861. Rule 37(c)(1) provides, in part:
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If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this sanction,
the court, on motion and after giving an opportunity to be heard:
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(A) may order payment of the reasonable expenses,
including attorney's fees, caused by the failure;
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(B) may inform the jury of the party's failure; and
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(C) may impose other appropriate sanctions, including any
of the orders listed in Rule 37(b)(2)(A)(i)–(vi).
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Fed. R. Civ. P. 37(c)(1).
The advisory committee explained that Rule 37(c)(1) “provides a self-executing
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sanction for failure to make a disclosure required by Rule 26(a), without need for a
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motion,” and that the “automatic sanction provides a strong inducement for disclosure of
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material that the disclosing party would expect to use as evidence[.]” Fed. R. Civ.
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P. 37(c)(1) advisory committee’s note to 1993 amendment.
“Two express exceptions ameliorate the harshness of Rule 37(c)(1): The
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information may be introduced if the parties’ failure to disclose the required information is
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substantially justified or harmless.” Yeti by Molly, 259 F.3d at 1106; Fed. R. Civ.
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P. 37(c)(1). “The party facing sanctions bears the burden of proving that its failure to
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disclose the required information was substantially justified or is harmless.” R & R Sails,
Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012); accord Yeti by
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United States District Court
Northern District of California
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Molly, 259 F.3d at 1107 (“Implicit in Rule 37(c)(1) is that the burden is on the party facing
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sanctions to prove harmlessness.”); Torres v. City of Los Angeles, 548 F.3d 1197, 1213
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(9th Cir. 2008) (“the burden is on the party facing the sanction . . . to demonstrate that the
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failure to comply with Rule 26(a) is substantially justified or harmless”).
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B.
Analysis
Plaintiff does not dispute that she did not produce the materials at issue by the
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deadline for initial Rule 26(a) disclosures, or by the discovery cutoff. Nor does she
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dispute that she did not “supplement or correct [her] disclosure or response” in
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accordance with Rule 26(e). See Fed. R. Civ. P. 26(a) & (e). Instead, plaintiff
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“sheepishly concedes” that she failed to produce the disputed emails as required by
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Rule 26(a) and (e), and also “that the failure was not substantially justified[.]” Opp.,
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Dkt. 58 at 1.1 Plaintiff contends only that her failure to comply with Rule 26 was harmless
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because defendants could have discovered the contested materials’ existence with their
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own investigation. See generally Ollier, 768 F.3d at 862–63.
As an initial matter, plaintiff does not meaningfully attempt to meet her burden to
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Plaintiff is directed to review and comply with Civil Local Rule 5-1(e)(2), which requires
that documents “must be converted to PDF from the word processing original, not
scanned, to permit text searches and to facilitate transmission and retrieval.”
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demonstrate that her failures to disclose were harmless. Instead, plaintiff repeatedly
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mischaracterizes her burden to demonstrate that defendants have not suffered harm as
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defendants’ burden to “prove” that they have suffered harm. See Opp. at 1 (Rule 37
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allows for sanctions “if Akima proves three elements”); id. (“Akima has not introduced any
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evidence proving harm”); id. at 3 (Akima “tries to imply that it did not have access to any
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of these contested emails, but it does not produce any evidence – a declaration under
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penalty of perjury – that would support that finding. . . . As a result, Akima has failed to
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carry its burden of proving harm.”).
In sum, plaintiff’s argument is that defendants likely could have found other copies,
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from other sources, of the emails she failed to produce. Plaintiff argues that if defendants
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United States District Court
Northern District of California
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had sufficiently expanded the scope of their investigation, beyond the discovery that was
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actually conducted in the case, they could have found other copies of the materials
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plaintiff was withholding.2 This argument is insufficient to satisfy plaintiff’s “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,” for at least two reasons. R & R Sails, 673 F.3d at 1246.
First, plaintiff does not demonstrate that defendants were actually aware of or in
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possession of the subject emails. In fact, plaintiff seems to concede that defendants
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were not actually aware of the disputed emails at all. She argues only that defendants
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likely would have been able to secure access to the materials had they sought them out.
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For example, plaintiff acknowledges that defendants did not produce the emails in
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response to a discovery request for “[a]ll emails referring or relating to Plaintiff.” Opp. at
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1. Plaintiff then offers a plausible explanation as to why defendants did not even collect
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those emails during discovery. Opp. at 2 (explaining that only communications between
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off-site and on-site employees appear to have been collected). Rather than challenge
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defendants’ collection and production efforts while discovery was ongoing, plaintiff only
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now argues that defendants’ collection efforts may have been insufficient, and that they
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Plaintiff does not identify any relevant discovery dispute raised or discovery order
issued that defendants failed to comply with.
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should have collected and produced the emails at issue (and others) while discovery was
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ongoing. So, rather than argue that defendants actually knew of the subject emails such
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that the late production was harmless, plaintiff appears to raise a (very late) discovery
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dispute based on the fact that defendants did not know of the emails.
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Defendants’ mere ability to obtain the undisclosed materials (as opposed to having
actual knowledge of them) does not support an argument that plaintiff’s late disclosure is
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harmless. Defendants have prepared their litigation strategy without knowledge of the
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undisclosed emails, such that introducing them into the litigation now will prejudice them.
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Their ability to have accessed the materials pursuant to an earlier investigation (outside
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the scope of discovery in this action) does not ameliorate that harm. For example, given
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United States District Court
Northern District of California
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that defendants have not actually known about the records, defendants have had no
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occasion to conduct discovery with respect to them, including by asking plaintiff and the
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other (now-third-party) correspondents about them at deposition.
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Plaintiff’s own argument all but admits that introducing the undisclosed emails
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would harm defendants with respect to their actual litigation of the action, but she asks
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the court to discount that harm because defendants could have forestalled it by
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conducting additional investigations. The court declines to impose a requirement that, in
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order to suffer harm from another party’s failure to disclose under Rule 26(a), the
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withheld materials must be materials that a party could not have discovered from an
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independent investigation conducted outside the scope of discovery.
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Second, Rule 26(a) broadly requires production of all documents “that the
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disclosing party has in its possession, custody, or control and may use to support its
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claims or defenses[.]” Fed. R. Civ. P. 26(a)(1)(A)(ii). The disclosure not only serves the
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function of ensuring that all parties possess the same underlying source materials (as
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discussed above), but it also importantly serves to foreclose trial by ambush or surprise.
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Even if defendants were aware of the existence of the emails from other sources, “[t]he
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theory of disclosure under the Federal Rules of Civil Procedure is to encourage parties to
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try cases on the merits, not by surprise, and not by ambush.” Ollier, 768 F.3d at 862.
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Disclosing the potential use of a document—and the possibility that it may support a
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claim or defense—allows other parties to meaningfully conduct discovery regarding those
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materials and what their authors “would say on relevant issues, which in turn informs the
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party's judgment about which witnesses it may want to call at trial, either to controvert
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testimony or to put it in context.” Id. That is, Rule 26(a) recognizes not only that the
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mutually-known existence of a document is important, but that the very act of a party
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disclosing it serves an important function that enhances the efficiency and fairness of
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litigation, including any eventual trial. See, e.g., id. at 862–63 (“Orderly procedure
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requires timely disclosure so that trial efforts are enhanced and efficient, and the trial
process is improved. The late disclosure of witnesses throws a wrench into the
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United States District Court
Northern District of California
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machinery of trial. . . . And if the discovery cutoff has passed, the party cannot conduct
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discovery without a court order permitting extension.”). Of particular concern here,
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defendants have before now had no reason to conduct discovery with respect to these
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records.
CONCLUSION
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For the foregoing reasons, plaintiff failed to demonstrate that her failure to disclose
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documents as required by Rule 26 was harmless. As such, defendants’ motion to
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exclude evidence is GRANTED. The materials in the document production plaintiff
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served on defendants on April 22, 2019 are hereby excluded pursuant to Rule 37(c)(1),
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and plaintiff is not allowed to use those materials to supply evidence on a motion, at a
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hearing, or at trial.
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IT IS SO ORDERED.
Dated: October 16, 2019
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge
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