ROC ASAP LLC et al v. Starnet Insurance Co

Filing 138

ORDER denying 132 Motion to Strike Defendant's Exhibits 66-79 from the Pretrial Report. Plaintiff to File a Motion Setting Forth the Attorney Time and Billing Rate Devoted to the Filing of the Motion to Strike no later than 10/7/2014; Defendant to Show Cause why the Court Should Not Sanction the Dilatory Conduct and Failures to Adequately Respond to the Order of the Court no later than 10/8/2014. Signed by Honorable Timothy D. DeGiusti on 10/2/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

ROC ASAP, L.L.C., a Utah corporation, and
ABAB, INC., an Oklahoma corporation, as
Assignee of ROC ASAP, L.L.C,
Plaintiffs,
vs.
STARNET INSURANCE CO., et al.,
Defendants.

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NO. CIV-12-461-D

ORDER
Before the Court is Plaintiff’s Motion to Strike Defendant’s Exhibits 66-79 from the Pretrial
Report [Doc. No. 132]. Defendant has responded to the motion [Doc. No. 133]. The matter,
therefore, is ready for decision.
On April 3, 2014, the Court entered its Order [Doc. No. 95] granting, in part, Defendant’s
Motion to Supplement its Final Witness and Exhibit Lists [Doc. No. 87]. As to Defendant’s exhibit
list, the Court granted Defendant’s request to add Supplemental Exhibits 68-75, 81, 83-84 and 85.
In granting this request, the Court expressly stated:
The deadline for submission of the parties’ Pretrial Report is April 17, 2014.
Defendant’s identification of exhibits in its Motion to Supplement is extremely
broad. Defendant is directed to identify with specificity the exhibits to be used at
trial in its Pretrial Report submissions.
Id. at p. 4, footnote 1. Thereafter, Defendant filed its Supplemental Final Exhibit List [Doc. No. 96].
Defendant identified the supplemental exhibits in the same manner as presented in its motion to
supplement without any further specificity. The parties also submitted their proposed Final Pretrial
Report [Doc. No. 104]. Again, Defendant identified the supplemental exhibits in the same manner
as presented in its motion to supplement and disregarded the Court’s directive to provide specificity.

Plaintiff objected to the supplemental exhibits on that basis and reserved further objections subject
to Defendant specifically identifying its exhibits.1
On September 15, 2014, the Court entered its Order [Doc. No. 128] requiring the parties to
submit a revised Final Pretrial Report on or before September 29, 2014. The Court noted in that
order that Defendant had failed to comply with the Court’s prior directive requiring Defendant to
identify its supplemental exhibits with specificity and again directed Defendant to do so before
submitting a revised Final Pretrial Report.
In the revised Final Pretrial Report [Doc. No. 134], and less than two weeks before trial,
Defendants exhibits have now more than doubled from a total of 81 exhibits to a total of 189
exhibits. As one example of how Defendant’s delay in identifying its supplemental exhibits with
specificity has now resulted in a sudden dramatic increase in those exhibits, Plaintiff states: “the
documents previously marked Exhibit 67, and identified as a single exhibit of documents from the
City of Midwest City, [is] now more than 40 exhibits by itself.” See Plaintiff’s Motion at p. 3, ¶ 6;
and compare proposed Pretrial Report [Doc. No. 104] filed April 17, 2014 with proposed Pretrial
Report filed September 29, 2014 [Doc. No. 134]. Plaintiff further contends that as of September 29,
2014, “Defendant’s Counsel has not yet provided a list of the specifically identified exhibits, much
less a copy of the exhibits marked as trial exhibits.” See Plaintiff’s Motion at p. 4, ¶ 8.
In response, Defendant contends that it has now specifically identified the supplemental
exhibits and that in the process, Defendant has “reduced the total amount of documents it previously
identified as exhibits” and has “actually eliminated approximately 1,500 pages of documents
previously identified as exhibits . . . .” See Defendant’s Response at p. 2, ¶ 4. Defendant does not
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The Court further notes that Plaintiff objected to the manner of Defendant’s identification of its supplemental
exhibits in its Motion in Limine [Doc. No. 99].

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allege that it has provided copies of the exhibits marked for trial but states that “the exhibits
themselves have been in the possession of opposing counsel for months.” Id. at pp. 1-2, ¶ 2.2 The
Court notes, as evidenced by the record, that Defendant did not provide its submissions for the
revised Final Pretrial Report until the eleventh hour.
Defendant has had months to correct the deficiencies previously addressed by this Court in
its identification of exhibits. Defendant’s continued failure to follow the directives from this Court,
as well as the requirements of the local rules of this Court, is of great concern to the Court. Rather
than streamline exhibits for trial, Defendant has now purportedly more than doubled the number of
its exhibits for trial.
Nonetheless, the specific identification of exhibits as now set forth in the revised Final
Pretrial Report allows Plaintiff the opportunity to make appropriate objections.3 Moreover, while
Plaintiff has not known with certainty which exhibits would be used, Plaintiff has had the exhibits
in its possession and is aware of Defendant’s intent to use these exhibits at trial. Under these
circumstances, the Court finds Plaintiff’s motion to strike should be denied.
However, even though the Court declines to strike the complained-of exhibits, the course of
conduct and failure to make sufficient efforts to comply with the Court’s previous orders is
concerning. Defendant’s counsel’s delay has interfered with the orderly preparation of this case for
trial, and precipitated the motion to strike filed by Plaintiff. Although Defendant claims that proper

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Pursuant to this Court’s local rules, at least three business days before submission of the pretrial report “all
exhibits and documents which are to be introduced in evidence are to be marked for identification, which shall include
the case number, and physically exchanged or exhibited to opposing counsel.” LCvR 39.4(a). It appears from the record
that Defendant had not complied with this requirement prior to the submission of the revised Final Pretrial Report.
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By separate order, the Court has rejected the revised Final Pretrial Report and Plaintiff will be provided the
opportunity to make proper objections and submit a second revised Final Pretrial Report to include those objections.

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review of its exhibits eliminated significant duplication, that simply underscores counsel’s previous
failure to adequately review, describe, list, and exchange Defendant’s trial exhibits. Thus, pursuant
to Fed. R. Civ. P. 16(f), the Court directs Plaintiff to file, no later than October 7, 2014, a motion
setting forth the attorney time and billing rate devoted to the filing of the motion to strike. The
Court further directs Defendant to file a submission to show cause why the Court should not
sanction the dilatory conduct and failures to adequately respond to the order of the Court as
discussed herein, which submission shall be filed not later than October 8, 2014.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike Defendant’s Exhibits 66-79
from the Pretrial Report [Doc. No. 132] is DENIED, and the parties are directed to submit the filings
as directed herein.
IT IS SO ORDERED this 2nd day of October, 2014.

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