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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHARLES MATTHEW ERHART,

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Case No. 15-cv-02287-BAS-NLS
consolidated with
15-cv-02353-BAS-NLS

Plaintiff,

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ORDER GRANTING IN PART
BOFI’S MOTION IN LIMINE
NO. 1 TO EXCLUDE
INCOMPLETE DOCUMENTS
AND RELATED TESTIMONY
(ECF No. 213)

v.

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BOFI HOLDING, INC.,

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Defendant.

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And Consolidated Case

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Presently before the Court is BofI Holding, Inc.’s Motion in Limine No. 1 to

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Exclude Incomplete Documents and Related Testimony. (ECF No. 213.) Erhart

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opposes. (ECF No. 223.) The Court heard argument on the motion. (ECF No. 230.)

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For the following reasons, the Court GRANTS IN PART BofI’s Motion in Limine

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No. 1.

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I.

BACKGROUND

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The Court and the parties are familiar with the story behind these consolidated

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cases awaiting trial. During discovery, BofI requested Erhart produce “[a]ll text
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messages YOU have sent or received concerning allegations of any wrongdoing by

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BofI.” (ECF No. 213-4.) Erhart asserted boilerplate objections and agreed to

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produce any non-privileged, relevant text messages. (ECF No. 213-5.)

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During depositions of third parties, BofI learned responsive communications

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were missing from Erhart’s document production. For example, at the deposition of

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Jacob Gantos, Gantos read into the record a lengthy text conversation that had not

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been produced. (ECF No. 213-6.) Some texts are relevant to the parties’ claims and

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defenses; others appear not to be. Another witness, Reymundo Castrejon, testified

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he deleted his texts with Erhart, but his deposition indicates they had more

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conversations than what was produced by Erhart. (ECF No. 213-8.)

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BofI moved to compel production of the missing texts. (ECF No. 107.) This

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led to the parties’ seventh discovery dispute submitted to the Magistrate Judge.

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Erhart argued BofI’s motion to compel was untimely under the Magistrate Judge’s

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Chambers Rules, which require a discovery dispute to be filed within forty-five days

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of the trigger date, e.g., the date of the response to the written discovery. Extensions

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are available by court order.

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The Magistrate Judge agreed with Erhart, reasoning the text messages were

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incomplete on their face. (ECF No. 108.) So, although the third-party depositions

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confirmed the text message production was incomplete more than forty-five days

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after the motion to compel deadline, BofI could have moved to compel earlier and

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lacked an excuse for its untimeliness. (Id.) In denying the motion to compel, the

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Magistrate Judge reasoned a motion in limine to exclude the incomplete text chains

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would be the avenue to cure any potential prejudice to BofI. (Id.) BofI now brings

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such a motion, requesting not only exclusion of the Incomplete Documents 1 and any

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related testimony, but also an adverse-inference jury instruction.

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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
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II.

LEGAL STANDARD

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Rule 26 provides that a party who has responded to a request for production

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“must supplement or correct its disclosure or response . . . in a timely manner if the

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party learns that in some material respect the disclosure or response is incomplete or

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incorrect, and if the additional or corrective information has not otherwise been made

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known to the other parties during the discovery process or in writing.” Fed. R. Civ.

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P. 26(e)(1)(A). Further, Rule 37(c)(1) provides for exclusion of any evidence or

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information that a party fails to disclose in a timely manner, unless the violation was

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harmless or substantially justified. Id. 37(c)(1).

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Rule 37(c)(1) is an “automatic” sanction that prohibits the use of improperly

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disclosed evidence. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101,

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1106 (9th Cir. 2001). Litigants can escape the “harshness” of exclusion only if they

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prove that the discovery violations were substantially justified or harmless. Id.

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(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.

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Merch. v. Corizon Health, Inc., 993 F.3d 733, 740 (9th Cir. 2021) (alterations in

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original).

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III.

ANALYSIS

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BofI argues allowing Erhart to use the Incomplete Documents would be

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prejudicial because it was unable to examine witnesses during discovery regarding

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their complete correspondence with Erhart. (ECF No. 213.) Erhart responds that he

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(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).
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complied with his obligation to provide all relevant documents, and there is no

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prejudice to BofI. (ECF No. 223.)

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BofI’s request to exclude the Incomplete Documents is justified. It is obvious

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that Erhart’s document production was incomplete. There are incomplete text chains

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where it makes no sense that the first relevant message is the one produced. (See,

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e.g., ECF No. 233-1.)

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Therefore, regardless of the Magistrate Judge’s discovery order, once Erhart’s

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counsel knew there were relevant, missing texts out there, Erhart should have

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produced them under his duty to supplement his discovery response. See Fed. R.

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Civ. P. 26(e)(1)(A). Had he produced the messages, he could have shown—by this

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juncture—that his belated disclosure was substantially justified or harmless.

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Moreover, Erhart does not show in his Opposition that he lacked access to the missing

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relevant messages. He fails to meet his burden to avoid the automatic sanction. See

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Merch., 993 F.3d at 741. Hence, the Court grants BofI’s request to exclude the

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Incomplete Documents. See Fed. R. Civ. P. 37(c)(1).

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That said, the Court denies BofI’s request for an adverse-inference jury

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instruction. In light of the circumstances of the case and the evidence at issue, the

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Court finds that sanction would be too harsh. The Court is also unpersuaded that this

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sanction is necessary to ameliorate the prejudice to BofI caused by the incomplete

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document production.

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BofI also asks the Court to exclude any testimony related to the Incomplete

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Documents. The Court reserves this issue for trial, as well as whether any of the

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Incomplete Documents may be used for impeachment.

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//

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//

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//

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//

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//
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IV.

CONCLUSION

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For the foregoing reasons, the Court GRANTS IN PART BofI’s Motion in

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Limine No. 1 to Exclude Incomplete Documents and Related Testimony. (ECF No.

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213.) The Court excludes the Incomplete Documents. Supra note 1. The Court

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reserves the issue of whether any related testimony may be admitted. Finally, the

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Court declines BofI’s request for an adverse-inference jury instruction.

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IT IS SO ORDERED.

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DATED: January 7, 2022

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