United States of America v. Garrett et al

Filing 33

MEMORANDUM OPINION AND ORDER ON MOTION TO COMPEL PREDISCOVERY DISCLOSURES granting 27 Motion to Compel. Signed by US Magistrate Judge Mark A. Moreno on 11/22/2024. (ARW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

UNITED STATES OF AMERICA,

3:23-CV-03007-RAL

Plaintiff,
MEMORANDUM OPINION AND
ORDER ON MOTION TO COMPEL
PREDISCOVERY DISCLOSURES

vs.
JAMES GARRETT AND LEVI GARRETT,
Defendants.

The Government complains that the Garretts have not provided their mandated
pre-discovery disclosures. After multiple unsuccessful attempts to resolve the issue
between the parties, the Government now moves to compel those required disclosures.
Because initial disclosures are mandatory, and incomplete here, the Court grants the
Government’s motion.
BACKGROUND
The Government criminally charged the Garretts with making false and
fraudulent statements for federal assistance. 1 A jury found James Garrett guilty on two

1

See 18 U.S.C. §§ 1014, 1031.

1

counts, Levi Garrett guilty on one count, and acquitted them on the remaining six. 2 After
the criminal trial, the Government commenced this civil action alleging the Garretts
violated the False Claims Act based on the same operative facts. 3
On August 7, 2024, the parties met for their Rule 26(f) conference 4 and agreed to
complete their initial disclosures by September 6, 2024. 5 The district court approved that
deadline. 6 September 6 passed with the Government providing its initial disclosures; but
the Garretts have purportedly not reciprocated. 7 Since then, the Government has made
four good-faith efforts to resolve the issue without court intervention to no avail.8
For their part, the Garretts claim that they satisfied their obligatory initial
disclosures in May 2024 and during the Rule 26(f) conference. 9 The disclosures appear to
be that the Garretts “do not know the names, or the phone numbers, or the addresses, of
the people who were used as witnesses in the [c]riminal trial and might be used by [them]
as witnesses at trial in this [c]ivil case,” but that they “will probably use the same

United States v. Garrett, No. 21-cr-30091, 2023 WL 3815388, at *1 (D.S.D. June 5, 2023).
See generally Docket No. 1.
4 Docket No. 23.
5 Docket No. 24, at 5.
6 Docket No. 26, at 2, ¶ 3.
7 Docket No. 29, at 1, ¶¶ 4–5.
8 Docket No. 29, at 1–3.
9 See Docket No. 32, at 6, ¶ 21 (“Defendants provided initial disclosures in writing on May 16, 2024,
providing valid points to discuss in connection with the parties’ Rule 26(f) meeting.”); id. at 7, ¶ 32
(“Defendants disclosed all the information they had, and showed in paragraph 25 [of their discovery plan]
the 36 defenses they were considering to defend themselves from Plaintiff’s Civil Complaint in this case.”).
2
3

2

individuals as witnesses in this [c]ivil case as [the Government] did in the [c]riminal
case.” 10
ANALYSIS
Initial disclosures are not optional.11 Federal Rule of Civil Procedure 26(a)
demands that they be made. After an aggrieved party makes a good-faith effort to resolve
another’s failure to provide initial disclosures, that party may move for an order
compelling the disclosures. 12 Any failure to follow a court’s order risks sanctions. 13
Rule 26(a)(1) lists the types of information that must be disclosed. It includes the
name, address, and telephone number of individuals likely to have discoverable
information—and documents in the disclosing party’s control—that support that party’s
case. 14 These disclosures must be written, signed, and served—certifying that, to the best
of the party’s knowledge, the information is complete and correct. 15 The failure to fully
investigate the case or challenges to the sufficiency of another party’s disclosure are no
excuse for skirting the rule’s mandates. 16

Id. at 2, ¶¶ 4, 6.
Hoffman v. MJC Am., Ltd., No. 18-cv-04169, 2019 WL 4933526, at *5 (D.S.D. Oct. 7, 2019).
12 Fed. R. Civ. P. 37(a)(1).
13 Fed. R. Civ. P. 37(b)(2)(A).
14 Fed. R. Civ. P. 26(a)(1)(A)(i)–(ii).
15 Fed. R. Civ. P. 26(a)(4); see also Fed. R. Civ. P. 26(g)(1).
16 Fed. R. Civ. P. 26(a)(1)(E).
10
11

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I.
The Garretts appear to lodge three responses to the Government’s motion to
compel but the crux of each focuses on the criminal case.
Previously Disclosed Evidence. The Garretts first maintain that they “do not know
the names . . . of the people who were used as witnesses in the [c]riminal trial and might
be used by [the Garretts] as witnesses at trial in this [c]ivil case.” 17 And, they insist, “the
documents, data compilations, and tangible things that [the Garretts] may use in the civil
case are in the possession and control of the [Government] in the related criminal case.” 18
Because the Government has the information from the criminal case, the Garretts contend
that they have complied with their disclosure duties. The Court is unpersuaded—and for
several reasons.
On the witness’ names, rather than find those criminal disclosures, 19 the Garretts
try to circuit the Rule 26(a)(1)(A) mandate by emphasizing the phrase if known in the rule.
They assert that, since they apparently do not know their witness’ names, they have
satisfied the rule “to the best of their knowledge and ability.” 20 But no worries, the
Garretts say, they “will probably use the same individuals” again. 21

Docket No. 32, at 2, ¶ 4.
Docket No. 30-1, at 8, ¶ 3.
19 See, e.g., Exhibit and Witness List at 5, United States v. Garrett, No. 21-cr-30091 (D.S.D. Oct. 21, 2022), ECF
No. 79.
20 Docket No. 32, at 2, ¶ 5.
21 Docket No. 32, at 2, ¶ 6.
17
18

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The Garretts misread Rule 26(a). The rule requires that parties disclose “the name
and, if known, the address and telephone number of each individual likely to have
discoverable information.” 22 It first imposes a minimum obligation on the party to reveal
the names of its witnesses. The rule secondarily, and if known, requires the witness’
addresses and phone numbers. Failing to take that initial step to disclose their witness’
names thus does not comply with the rule despite the Garretts’ pledge that they do not
know the names of the witnesses they divulged in their criminal case and who they may
use here.
Besides, Rule 26(a)(1)(E) requires the disclosure of the information “reasonably
available” to them. The attempt to pass the entire burden of discovery disclosures onto
the Government because the Garretts refuse to locate the names, or documents, of their
potential witnesses and evidence is unacceptable. The “major purpose” of Rule 26(a)
disclosures is “to accelerate the exchange of basic information about the case and to
eliminate the paper work involved in requesting such information.” 23 For the Garretts to
tell the Government to sift through and figure out the pertinent information that would
be immediately apparent from initial disclosures defies the rule’s intent.
Although this action is a close cousin to the criminal case, it is still a separate action.
To say—as the Garretts do—that they will probably call the same witnesses as in their

22
23

Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added).
Fed. R. Civ. P. 26 advisory committee’s note to 1993 amendment.

5

criminal case falls short. Even now, the Garretts advance new claims in their civil case
that they believe “open[] up new potential defenses in [False Claims Act] cases.” 24 At the
very least, novel defenses deserve disclosure. 25 They have also had more time to review
the evidence and workshop arguments since their criminal case that may have
expanded—or contracted—their theories here. It is then imperative that the Garretts
disclose the witnesses and documents they plan to use for this civil action.
Alleged Hypocrisy. The Garretts claim second that the Government has failed to
meet its initial disclosure obligations. 26 They do so without filing a reciprocal motion to
compel. Their contention also conflicts with the Government’s certification attesting it
completed its initial disclosures. 27 No matter, Rule 26(a) specifically states that it is
unacceptable to refuse to make initial disclosures because the opposing party has not
made its disclosures. 28 The Garretts’ excuse is no excuse.
Supposed Standing Consent to Stay Civil Proceedings. The Garretts claim last that the
Government has previously agreed to several stays pending a final disposition of their
criminal appeal. They have seemingly interpreted the Government’s generosity to
consent to those stays as a standing agreement to put the civil case on hold until the

Docket No. 30-1, at 4, ¶ 27.
See Docket No. 30-1, at 3–6; cf. Docket No. 31, at 4.
26 Docket No. 32, at 3–4.
27 Docket No. 29, at 1, ¶ 4; see also Docket No. 29-1.
28 Fed. R. Civ. P. 26(a)(1)(E).
24
25

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criminal appeals are completed. 29 And since they may still petition for a writ of certiorari
with the Supreme Court, the civil case must remain stagnant.
Even if there were an agreement between the parties to pause the civil
proceedings, 30 this contravenes the Garretts’ own commitment to provide initial
disclosures by September 6, 2024. 31 What’s more, the district court ordered that all
pre-discovery disclosures be exchanged on or before that day.32 The Garretts’ belief that
they had an implicit understanding to halt proceedings does not trump their express
promise to the contrary, much less the district court’s disclosure order.
II.
As earlier mentioned, failing to abide by deadlines may result in sanctions to the
offending party. While this civil case is still in its infancy, it is not the first time that the
Garretts have struggled to timely comply with expectations. 33 The Garretts are
forewarned, should the issue persist, opposing counsel or the Court may not be so
forgiving.
CONCLUSION
Because Rule 26(a) disclosures are mandatory, and the Garretts have disregarded
the rule’s dictates, the Court grants the Government’s motion to compel. Pointing to

Docket No. 32, at 4, ¶¶ 13–14.
See Docket No. 30-1, at 2, ¶¶ 17–18 (arguments from the Garretts in their 26(f)-discovery-report that if no
agreement to stay the civil case could be arranged, then they would move for a stay).
31 Docket No. 30-1, at 5, ¶ 10.
32 Docket No. 26, at 2, ¶ 3.
33 See Docket Nos. 24–25.
29
30

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discovery done in a criminal case is no excuse for failing to abide by the rules in this civil
action, regardless of whether the same operative facts are at issue. Challenging the
sufficiency of opposing counsel’s disclosures is no justification either. At any rate, the
Garretts agreed to a September 6, 2024 deadline for pre-discovery disclosures, which the
district court approved. They must now heed their representations.
ORDER
For all these reasons and based on the authorities cited, it is
ORDERED that the Government’s motion to compel 34 is GRANTED.
DATED this 22d day of November, 2024.
BY THE COURT:

MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE

34

Docket No. 27.

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