McCabe v. Ramparts, Inc.

Filing 266

ORDER Granting 217 Plaintiff's Motion for Sanctions to the extent that Defendants shall, within 45 days of the date of this order, produce witnesses Ben Elliot and Christina Jensen for deposition. Defendant shall bear all costs in connection with depositions and production of witnesses, and shall also pay a reasonable attorney's fee for the attendance of the attorney who conducts the deposition on behalf of Plaintiff. Signed by Judge Philip M. Pro on 4/16/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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-oOo-

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KEVIN MCCABE,
Plaintiff,

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vs.

RAMPARTS, INC., d/b/a/ LUXOR
HOTEL AND CASINO aka
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Defendant.

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2:08-CV-01232-PMP-GWF
ORDER

Before the Court for consideration is Plaintiff’s Motion for Sanctions due
to Withheld Witness Statements (Doc. #217).
The Motion is fully briefed and the record establishes that voluntary

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statements of two percipient witnesses, Ben Elliott and Christina Jensen, provided to

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Defendant on August 10, 2006 and August 21, 2006, respectively, were not

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produced in discovery for Plaintiff until December 22, 2011. Plaintiff contends

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Defendant’s tardy production of the two voluntary statements constitutes spoiliation

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of evidence sufficient in the context of this entire case to warrant the striking of any

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liability defenses tendered by Defendants. The Court finds Defendant’s tardy

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production of the two voluntary statements to be sanctionable, but not to the extent

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requested by Plaintiff.

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Timely production and supplementation of discovery is the mutual

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responsibility of all parties in any civil action. The Court finds no basis to conclude

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that Defendant’s failure to timely produce the voluntary statements of Ben Elliott

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and Christina Jensen was intentional, bu the tardy production is nonetheless a source

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of prejudice to Plaintiff with regard to trial preparation. The Court will remedy this

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prejudice as follows:

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IT IS ORDERED that Plaintiff’s Motion for Sanctions Due to Withheld

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Witness Statements (Doc. #217) is Granted to the extent that Defendants shall,

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within forty-five days of the date of this Order, and a date and time mutually

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convenient to counsel for both Parties and the witnesses, produce witnesses Ben

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Elliott and Christina Jensen for deposition at Las Vegas, Nevada. Defendant shall

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bear all costs in connection with the depositions and production of witnesses for the

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same, and shall also pay a reasonable attorney’s fee for the attendance of the

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attorney who conducts the deposition on behalf of Plaintiff.

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DATED: April 16, 2012.

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PHILIP M. PRO
United States District Judge

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