Trevathan v. URS Corporation et al

Filing 94

MEMORANDUM in support of the Court's barring introduction of the Olmsted Lock and Dam construction contract. Signed by Judge Michael J. Reagan on 11/28/12. (caa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYLER TREVATHAN,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
URS ENERGY & CONSTRUCTION, INC.,
Defendant.

Case No. 11-CV-0946-MJR

MEMORANDUM IN SUPPORT OF
THE COURT’S BARRING INTRODUCTION OF THE
OLMSTED LOCK AND DAM CONSTRUCTION CONTRACT
REAGAN, District Judge:
In Plaintiff’s motion in limine, he sought to bar Defendant from
presenting evidence that Defendant’s construction contract for the Olmsted Lock and
Dam would expire in 2014. Plaintiff submitted that Defendant failed and refused to
produce a copy of the contract in response to his January 27, 2012, Rule 34 request.
The Court denied Plaintiff’s motion in limine on November 16, 2012 (Doc. 77).
During the course of the trial and, more particularly, at the jury
instruction conference held on November 27, 2012, after additional information and
argument by the parties, the Court reconsiders its ruling to the extent that the Court
has concluded that Defendant may not introduce evidence based on the construction
contract at issue.
Under the Scheduling Order entered by Magistrate Judge Donald G.
Wilkerson on November 23, 2011, the parties were required to make Rule 26(a)
disclosures by December 14, 2011 (Doc. 12). Initial interrogatories and requests to
produce, pursuant to Federal Rules of Civil Procedure 33 and 34, were to be served on
1

opposing parties by January 20, 2012. The discovery deadline was set for July 2,
2012.
The

Seventh

Circuit Court

of Appeals has stated

that

“[t]he

determination of whether a Rule 26(a) violation is justified or harmless is entrusted to
the broad discretion of the district court.” David v. Caterpillar, Inc., 324 F.3d 851,
857 (7th Cir. 2003), citing Mid–America Tablewares, Inc. v. Mogi Trading Co.,
Ltd.,100 F.3d 1353, 1363 (7th Cir. 1996); see also Salgado v. General Motors
Corp., 150 F.3d 735, 739 (7th Cir. 1998) (stating that a district court's ruling on a
motion to exclude testimony for noncompliance with Rule 26(a) is reviewed for an
abuse of discretion and “[u]nder this standard, we shall affirm the judgment of
the district court whenever we believe that the district court chose an option that
was among those from which we might expect a district court reasonably to
choose”). “A district court need not make explicit findings concerning the existence
of a substantial justification or the harmlessness of a failure to disclose.” Id., citing
Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
Cir. 1999). “[T]he following factors should guide the district court's discretion: (1)
the prejudice or surprise to the party against whom the evidence is offered; (2) the
ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial;
and (4) the bad faith or willfulness involved in not disclosing the evidence at an
earlier date.” Id. (citations omitted).
Federal Rule of Civil Procedure 26(a)(1)(A)(ii) and (iii) require disclosure
to a party’s opponent of
(ii) a copy - or a description by category and location - of all documents,
electronically stored information, and tangible things that the disclosing
2

party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the
disclosing party - who must also make available for inspection and
copying as under Rule 34 the documents or other evidentiary material,
unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and
extent of injuries suffered;….
Rule 37(c)(1) provides, “If a party fails to provide information … as
required by Rule 26(a) or (e), the party is not allowed to use that information … to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” “This sanction is ‘automatic and mandatory’
unless the offending party can establish ‘that its violation of Rule 26(a)(2) was either
justified or harmless.’” Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 641 (7th
Cir. 2008) (citation omitted); Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th
Cir. 1996). “Compliance with Rule 26, in particular with the requirement of total
disclosure, is emphasized in the Advisory Committee comments.” Salgado by Salgado
v. General Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998). The “incentive for
total disclosure” is the threat that the information not disclosed in accordance with
the Rule can be excluded pursuant to Rule 37(c)(1). Id. “The availability of this
sanction ‘put[s] teeth into the rule.’” Id., citing Richard M. Heimann & Rhonda L.
Woo, Import of Amended Federal Rule of Civil Procedure 26(a), 506 PLI/Lit 279,
293 (July-Aug. 1994).
Defendant’s failure or refusal to provide a copy of the construction
contract violated Rule 26(a).

The Court finds that the failure was neither

3

substantially justified nor harmless.

So, under Rule 37(c)(1), Defendant cannot

introduce evidence based on the contract at trial.
For the above-stated reasons and for the reasons set forth on the record
on November 27, 2012, the introduction at trial of the Olmsted Lock and Dam
construction contract is BARRED.
IT IS SO ORDERED
DATED: November 28, 2012

s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge

4