Hitachi Medical Systems America, Inc. v. Branch et al

Filing 371

Memorandum Opinion and Order: The court hereby amends a portion of its prior order (related document 295 ) regarding David Branch's sanction issued April 5, 2011 as as follows: Pursuant to Fed. R. Civ. P. 37(b)(2)(A)(ii), the Court proh ibits Defendant David Branch from initiating the introduction of, reference to, or reliance upon documents or information in the form of or derived from documents or information that he failed to produce during pre-trial discovery. To the extent Dav id Branch is questioned, by opposing counsel, about documents or information requested of him that he failed to produce, he may respond if under oath and on the witness stand. The modification of the Courts ruling permits the following to occur at t rial: if questioned, by opposing counsel, about documents or information not produced pretrial, David Branchs testimony, during a responsive examination by his own counsel (or pro se) will be limited to the narrow scope of the line of questioning put to him during the earlier examination by opposing counsel. With that limitation, however, he will be permitted to testify about the same documents and information presented to him during opposing counsels examination. The balance of the Court's order remains in place. Judge Benita Y. Pearson 8/11/2011. (R,Li)

PEARSON, J.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
HITACHI MEDICAL SYSTEMS
AMERICA, INC.,
Plaintiff,
v.
DANIEL BRANCH, et al.,
Defendants.

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CASE NO. 5:09CV01575

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER (Regarding ECF No. 295)

On April 5, 2011, the Court adopted Magistrate Judge George J. Limbert’s Report and
Recommendation recommending that the Court sanction pro se Defendant David Branch for his
continued failure to cooperate in discovery by “prohibiting Defendant from supporting or
opposing all claims or defenses, and from introducing any evidence,” pursuant to Fed. R. Civ. P.
37(b)(2)(A)(ii).1 ECF Nos. 256 at 13; 295 at 11. At the final pretrial hearing held on July 13,
2011, it was brought to the Court’s attention that the parties interpreted the sanction “prohibiting
Defendant from supporting or opposing all claims or defenses, and from introducing any
evidence” as it relates to trial as essentially requiring David Branch to be subject to examination
but to otherwise remain mute during the portions of the trial when evidence is presented.
Accordingly, the Court hereby amends that portion of its prior Order regarding David
Branch’s sanction issued on April 5, 2011(ECF No. 295) as follows: Pursuant to Fed. R. Civ. P.
37(b)(2)(A)(ii), the Court prohibits Defendant David Branch from initiating the introduction of,

1

Fed. R. Civ. P. 37(b)(2)(A)(ii) prohibits “the disobedient party from supporting or
opposing designated claims or defenses, or from introducing designated matters in evidence.”

(5:09CV01575)
reference to, or reliance upon documents or information in the form of or derived from
documents or information that he failed to produce during pre-trial discovery. To the extent
David Branch is questioned, by opposing counsel, about documents or information requested of
him that he failed to produce, he may respond if under oath and on the witness stand, as
described below.
During the final pretrial hearing, Plaintiff’s counsel attempted service of a subpoena
requiring the physical presence of David Branch at trial, making it seem that Plaintiff’s counsel
might be considering seeking evidence from David Branch at trial through testimony.2 Carried
to its most extreme literal meaning, the Court’s earlier ruling would have caused David Branch’s
responses to questions, posed by opposing counsel, about documents and information not
produced during pre-trial discovery to place David Branch in jeopardy of once again violating an
order of the Court, by, minimally, giving an answer that supports or opposes a claim or defense
or introduces evidence. The modification of the Court’s ruling in ECF No. 295 permits the
following to occur at trial: if questioned, by opposing counsel, about documents or information
not produced pretrial, David Branch’s testimony, during a responsive examination by his own
counsel (or pro se) will be limited to the narrow scope of the line of questioning put to him
during the earlier examination by opposing counsel. With that limitation, however, he will be
permitted to testify about the same documents and information presented to him during opposing
counsel’s examination.
The balance of the Court’s order, (ECF No. 295), remains in place.
2

“Testimony is evidence that a competent witness under oath or affirmation gives at trial
or in an affidavit or deposition.” BLACK’S LAW DICTIONARY1514 (8th ed. 2004).
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(5:09CV01575)

IT IS SO ORDERED.

August 11, 2011
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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