Ollier et al v. Sweetwater Union High School District et al

Filing 186

ORDER granting 183 Motion to Strike Trial Testimony Concerning Connect-Ed Phone System. Signed by Judge M. James Lorenz on 11/30/10. (lmt)

-WMC Ollier et al v. Sweetwater Union High School District et al

Doc. 186

1 2 3 4 5 6 7 8 9 10 11 VERONICA OLLIER, et al., 12 13 v. 14 SWEETWATER UNION HIGH SCHOOL DISTRICT, et al., 15 Defendants. 16 17 Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) Civil No. 07cv714-L(WMc) ORDER GRANTING MOTION TO STRIKE TRIAL TESTIMONY CONCERNING CONNECT-ED PHONE SYSTEM [doc. #183] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On November 15, 2010, plaintiffs filed a motion to strike the trial testimony of defense

18 witness, Miriam Duggan, concerning the Connect-Ed phone system which was a potential means 19 of publicizing athletic programs at Castle Park High School ("CPHS"). Plaintiffs objected to 20 this testimony during trial because defendants failed to provide information about the Connect21 Ed phone system in response to plaintiffs' interrogatories and production requests concerning 22 publicity. 23 The complaint includes nine factors including publicity with respect to their claim for

24 sex-based discrimination in athletic treatment and benefits. During discovery, plaintiffs served 25 interrogatories requesting that defendants identify all facts on which they based their denial of 26 allegations of the complaint and affirmative defenses. Defendants responded to the 27 interrogatories, and concerning the publicity factor, they identified school bulletins, the school's 28 public address system and marquee announcements. The Connect-Ed phone system was not
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1 mentioned in the interrogatory response. 2 Similarly, plaintiffs requested production of documents "summarizing, describing, or

3 referring to any . . . provided to or for any District athletic team for each year from the 19984 1999 school year until the present." (Plaintiffs' First Request for Production of Documents.) 5 Defendants did not produce any documents referring to the Connect-Ed phone system. 6 Federal Rule of Civil Procedure 37(c)(1) permits the Court to preclude "the use at trial of

7 any information required to be disclosed by Rule 26(a) that is not properly disclosed." Yeti by 8 Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105 (9th Cir. 2001). Failure to disclose 9 may be excused if the party can demonstrate substantial justification or if the nondisclosure is 10 harmless. FED. R. CIV. P. 37(c)(1). 11 While acknowledging their failure to identify the Connect-Ed phone system in their

12 interrogatory responses, defendants contend that their lack of disclosure was substantially 13 justified and harmless. The Court disagrees. 14 According to defendants, their failure to disclose the Connect-Ed phone system was

15 substantially justified because plaintiffs' interrogatory was generally worded and the phone 16 system was not a primary method used to promote athletics. (Dfts' Trial Brief at 6, docket no. 17 182.) Whether the interrogatory was generally worded or whether the Connect-Ed phone 18 system was a primary method of athletic promotion is not the relevant inquiry. If the Connect19 Ed phone system was used to publicize athletics at CPHS as Ms Duggan testified at trial, 20 defendants were required to disclose the phone system to plaintiffs. Defendants have made no 21 showing that their failure to disclose this information was substantially justified. 22 In addressing harmlessness, defendants say there is no prejudice because the plaintiffs

23 "received numerous calls from the Connect-Ed phone system for various events such as dances, 24 homecoming events, athletic competitions, and exams. Thus, information regarding the 25 Connect-Ed system was equally available to Plaintiffs and Defendants." (Dfts' Trial Brief at 5, 26 docket no. 182.) This argument is without merit. Full disclosure of the Connect-Ed phone 27 system as a means of athletic promotion was required in response to the interrogatory. Because 28 it was not disclosed, plaintiffs had no opportunity to conduct any discovery regarding the
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1 Connect-Ed phone system. 2 Defendants further suggest their failure to disclose the Connect-Ed system was harmless

3 because it was plaintiffs' fault for not asking an open-ended question about publicity during 4 depositions. This argument is without merit. 5 Finally, defendants contend their failure to disclose was harmless because plaintiffs could

6 have addressed the issue in cross examination or by calling rebuttal witnesses. Such suggestions 7 may be appropriate in some situations but here, plaintiffs were thwarted in doing discovery that 8 could have been significant to the issue of publicity. 9 Characterizing their lack of disclosure as an innocent mistake, defendants argue that the

10 exclusion of the testimony relating to the Connect-Ed phone system is too harsh a remedy. 11 (Dfts' Trial Brief at 6, docket no. 182.) But as case law makes clear, "even absent a showing in 12 the record of bad faith or willfulness, exclusion is an appropriate remedy for failing to fulfill the 13 required disclosure requirements of Rule 26(a)." Yeti, 259 F.3d at 1106. The exclusion sanction 14 is "self-executing" and "automatic" to "provide[ ] a strong inducement for disclosure of 15 material." Id. (quoting FED. R. CIV. P. 37 advisory committee's note (1993)). 16 Publicity is a significant factor to be considered in plaintiffs' case of gender-based

17 discrimination. Being unable to fully address this factor because of defendants' lack of 18 disclosure about a form of athletic publicity ­ the Connect-Ed phone system ­ harmed plaintiffs' 19 ability to conduct needed discovery. Although the degree of prejudice cannot be ascertained 20 with certainty, the Court finds that plaintiffs were prejudiced by defendants' failure to properly 21 disclose the Connect-Ed phone system in response to interrogatories and requests for production 22 of documents. Additionally, defendants have made no showing of substantial justification. 23 Based on the foregoing, IT IS ORDERED granting plaintiffs' motion to strike trial

24 testimony concerning Connect-Ed phone system. [doc. #183] 25 IT IS SO ORDERED.

26 DATED: November 30, 2010 27 28 M. James Lorenz United States District Court Judge
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1 COPY TO: 2 HON. WILLIAM McCURINE, JR. UNITED STATES MAGISTRATE JUDGE 3 4 ALL PARTIES/COUNSEL 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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