Erhart v. Bofi Holding Inc.

Filing 238

ORDER Granting In Part Bofis Motion In Limine No. 1 To Exclude Incomplete Documents And Related Testimony (ECF No. 213 ). Signed by Judge Cynthia Bashant on 1/7/2022. (ddf)

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Case 3:15-cv-02287-BAS-NLS Document 238 Filed 01/07/22 PageID.9802 Page 1 of 5 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 CHARLES MATTHEW ERHART, 13 Case No. 15-cv-02287-BAS-NLS consolidated with 15-cv-02353-BAS-NLS Plaintiff, 14 15 ORDER GRANTING IN PART BOFI’S MOTION IN LIMINE NO. 1 TO EXCLUDE INCOMPLETE DOCUMENTS AND RELATED TESTIMONY (ECF No. 213) v. 16 BOFI HOLDING, INC., 17 Defendant. 18 And Consolidated Case 19 20 21 Presently before the Court is BofI Holding, Inc.’s Motion in Limine No. 1 to 22 Exclude Incomplete Documents and Related Testimony. (ECF No. 213.) Erhart 23 opposes. (ECF No. 223.) The Court heard argument on the motion. (ECF No. 230.) 24 For the following reasons, the Court GRANTS IN PART BofI’s Motion in Limine 25 No. 1. 26 I. BACKGROUND 27 The Court and the parties are familiar with the story behind these consolidated 28 cases awaiting trial. During discovery, BofI requested Erhart produce “[a]ll text –1– 15cv2287 Case 3:15-cv-02287-BAS-NLS Document 238 Filed 01/07/22 PageID.9803 Page 2 of 5 1 messages YOU have sent or received concerning allegations of any wrongdoing by 2 BofI.” (ECF No. 213-4.) Erhart asserted boilerplate objections and agreed to 3 produce any non-privileged, relevant text messages. (ECF No. 213-5.) 4 During depositions of third parties, BofI learned responsive communications 5 were missing from Erhart’s document production. For example, at the deposition of 6 Jacob Gantos, Gantos read into the record a lengthy text conversation that had not 7 been produced. (ECF No. 213-6.) Some texts are relevant to the parties’ claims and 8 defenses; others appear not to be. Another witness, Reymundo Castrejon, testified 9 he deleted his texts with Erhart, but his deposition indicates they had more 10 conversations than what was produced by Erhart. (ECF No. 213-8.) 11 BofI moved to compel production of the missing texts. (ECF No. 107.) This 12 led to the parties’ seventh discovery dispute submitted to the Magistrate Judge. 13 Erhart argued BofI’s motion to compel was untimely under the Magistrate Judge’s 14 Chambers Rules, which require a discovery dispute to be filed within forty-five days 15 of the trigger date, e.g., the date of the response to the written discovery. Extensions 16 are available by court order. 17 The Magistrate Judge agreed with Erhart, reasoning the text messages were 18 incomplete on their face. (ECF No. 108.) So, although the third-party depositions 19 confirmed the text message production was incomplete more than forty-five days 20 after the motion to compel deadline, BofI could have moved to compel earlier and 21 lacked an excuse for its untimeliness. (Id.) In denying the motion to compel, the 22 Magistrate Judge reasoned a motion in limine to exclude the incomplete text chains 23 would be the avenue to cure any potential prejudice to BofI. (Id.) BofI now brings 24 such a motion, requesting not only exclusion of the Incomplete Documents 1 and any 25 related testimony, but also an adverse-inference jury instruction. 26 27 28 1 The Incomplete Documents are: Dep. Ex. 60 – Texts with Jacob Gantos (ECF No. 23311); Dep. Ex. 82 – Texts with Michael Sisk (ECF No. 213-12); Dep. Ex. 140 – Texts with Reymundo Castrejon (ECF No. 213-13); Dep. Ex. 141 – Additional Texts with Reymundo Castrejon (ECF No. 213-14); Dep. Ex. 146 – Group Texts Between Erhart, Reymondo Castrejon, and Daniel Crescitelli (ECF No. 213-15); Dep. Ex. 225 – Texts Between Erhart and Sabrina Koll –2– 15cv2287 Case 3:15-cv-02287-BAS-NLS Document 238 Filed 01/07/22 PageID.9804 Page 3 of 5 1 II. LEGAL STANDARD 2 Rule 26 provides that a party who has responded to a request for production 3 “must supplement or correct its disclosure or response . . . in a timely manner if the 4 party learns that in some material respect the disclosure or response is incomplete or 5 incorrect, and if the additional or corrective information has not otherwise been made 6 known to the other parties during the discovery process or in writing.” Fed. R. Civ. 7 P. 26(e)(1)(A). Further, Rule 37(c)(1) provides for exclusion of any evidence or 8 information that a party fails to disclose in a timely manner, unless the violation was 9 harmless or substantially justified. Id. 37(c)(1). 10 Rule 37(c)(1) is an “automatic” sanction that prohibits the use of improperly 11 disclosed evidence. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 12 1106 (9th Cir. 2001). Litigants can escape the “harshness” of exclusion only if they 13 prove that the discovery violations were substantially justified or harmless. Id. 14 (citing Fed. R. Civ. P. 37(c)(1)). The Ninth Circuit further explained: The automatic nature of the rule’s application does not mean that a district court must exclude evidence that runs afoul of Rule 26(a) or (e)— Rule 37(c)(1) authorizes appropriate sanctions “[i]n addition to or instead of [exclusion].” Fed. R. Civ. P. 37(c)(1). Rather, the rule is automatic in the sense that a district court may properly impose an exclusion sanction where a noncompliant party has failed to show that the discovery violation was either substantially justified or harmless. 15 16 17 18 19 20 Merch. v. Corizon Health, Inc., 993 F.3d 733, 740 (9th Cir. 2021) (alterations in 21 original). 22 III. ANALYSIS 23 BofI argues allowing Erhart to use the Incomplete Documents would be 24 prejudicial because it was unable to examine witnesses during discovery regarding 25 their complete correspondence with Erhart. (ECF No. 213.) Erhart responds that he 26 27 28 (ECF No. 213-16); Dep. Ex. 231 – Texts Between Erhart and Carlos Cesena (ECF No. 213-17); Erhart 000274–278 – Texts Between Erhart and Sabrina Koll (ECF No. 213-18); and Erhart 000210 – Texts between Erhart and Elda Ponce (ECF No. 213-19). –3– 15cv2287 Case 3:15-cv-02287-BAS-NLS Document 238 Filed 01/07/22 PageID.9805 Page 4 of 5 1 complied with his obligation to provide all relevant documents, and there is no 2 prejudice to BofI. (ECF No. 223.) 3 BofI’s request to exclude the Incomplete Documents is justified. It is obvious 4 that Erhart’s document production was incomplete. There are incomplete text chains 5 where it makes no sense that the first relevant message is the one produced. (See, 6 e.g., ECF No. 233-1.) 7 Therefore, regardless of the Magistrate Judge’s discovery order, once Erhart’s 8 counsel knew there were relevant, missing texts out there, Erhart should have 9 produced them under his duty to supplement his discovery response. See Fed. R. 10 Civ. P. 26(e)(1)(A). Had he produced the messages, he could have shown—by this 11 juncture—that his belated disclosure was substantially justified or harmless. 12 Moreover, Erhart does not show in his Opposition that he lacked access to the missing 13 relevant messages. He fails to meet his burden to avoid the automatic sanction. See 14 Merch., 993 F.3d at 741. Hence, the Court grants BofI’s request to exclude the 15 Incomplete Documents. See Fed. R. Civ. P. 37(c)(1). 16 That said, the Court denies BofI’s request for an adverse-inference jury 17 instruction. In light of the circumstances of the case and the evidence at issue, the 18 Court finds that sanction would be too harsh. The Court is also unpersuaded that this 19 sanction is necessary to ameliorate the prejudice to BofI caused by the incomplete 20 document production. 21 BofI also asks the Court to exclude any testimony related to the Incomplete 22 Documents. The Court reserves this issue for trial, as well as whether any of the 23 Incomplete Documents may be used for impeachment. 24 // 25 // 26 // 27 // 28 // –4– 15cv2287 Case 3:15-cv-02287-BAS-NLS Document 238 Filed 01/07/22 PageID.9806 Page 5 of 5 1 IV. CONCLUSION 2 For the foregoing reasons, the Court GRANTS IN PART BofI’s Motion in 3 Limine No. 1 to Exclude Incomplete Documents and Related Testimony. (ECF No. 4 213.) The Court excludes the Incomplete Documents. Supra note 1. The Court 5 reserves the issue of whether any related testimony may be admitted. Finally, the 6 Court declines BofI’s request for an adverse-inference jury instruction. 7 IT IS SO ORDERED. 8 9 DATED: January 7, 2022 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –5– 15cv2287

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