Marland et al v. Asplundh Tree Expert

Filing 153

MEMORANDUM DECISION denying 137 Motion in Limine. Signed by Judge Ted Stewart on 1/27/17. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCOTT K. MARLAND and JENNIFER D.
MARLAND, as conservators for the minor
child, J.S.M.,

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
MOTION IN LIMINE NO. 8 TO
EXCLUDE UNTIMELY DISCLOSED
MAPS DEPICTING TREE TRIMMING
ACTIVITIES WITHIN BOUNTIFUL CITY
POWER’S AREA FROM 2005 THROUGH
THE PRESENT

Plaintiffs,
v.
ASPLUNDH TREE EXPERT CO., a
Pennsylvania corporation,

Case No. 1:14-CV-40 TS

Defendant.

District Judge Ted Stewart

This matter is before the Court on Plaintiffs’ Motion in Limine No. 8 to Exclude
Untimely Disclosed Maps Depicting Tree Trimming Activities Within Bountiful City Power’s
Area from 2005 Through the Present. For the reasons discussed below, the Court will deny the
Motion.
Defendant has identified as a potential exhibit maps depicting the tree cutting and
trimming activities within Bountiful City Power’s area from 2005 through the present. Plaintiffs
seek to exclude these maps, asserting that they were not timely disclosed.
Federal Rule of Civil Procedure 26(a)(1)(A)(ii) requires parties to provide “a copy—or a
description by category and location—of all documents, electronically stored information, and
tangible things that the disclosing 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.” “If a party fails
to provide information or identify a witness as required by Rule 26(a) . . . , the party is not

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allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.” 1
Plaintiffs argue that Defendant did not produce or disclose the maps at issue until
December 6, 2016. However, Defendant has provided its initial disclosures, dated June 13,
2014, in which Defendant disclosed the existence of “[o]versized maps depicting tree cutting and
trimming activities within Bountiful City Power’s area from 2005 through present.” 2 Defendant
stated that “[i]nspection and/or copies” of the maps would be “provided upon request.” 3 Thus,
the question becomes whether Defendant’s disclosure was sufficient.
Rule 26(a)(1)(A)(ii) “does not require production of any documents.” 4 Compliance with
the rule may be accomplished by providing a description of the document and location. The
other party is “expected to obtain the documents desired by proceeding under Rule 34 or through
informal requests.” 5 Here, Defendant provided a clear description of the document. Though
Defendant did not state the location of the maps, Defendant stated that they would be made
available for inspection and/or copying upon request. The Court finds this information sufficient
to meet Defendant’s disclosure obligations. Evidently, Plaintiffs never made a request to inspect
or copy the maps at issue. Plaintiffs cannot now be heard to complain that they may be
prejudiced by Defendant’s use of the maps. Any prejudice could have easily been avoided by
either making an informal request to Defendant or, if necessary, filing a motion under Rule 34.
1

Fed. R. Civ. P. 37(c).

2

Docket No. 149 Ex. A, at 9.

3

Id.

4

Fed. R. Civ. P. 26(a) advisory committee’s note to 1993 amendment; see also Kern
River Gas Transmission Co. v. 6.17 Acres of Land, 156 F. App’x 96, 101 (10th Cir. 2005).
5

Fed. R. Civ. P. 26(a) advisory committee’s note to 1993 amendment.

2

It is therefore
ORDERED that Plaintiffs’ Motion in Limine No. 8 to Exclude Untimely Disclosed Maps
Depicting Tree Trimming Activities Within Bountiful City Power’s Area from 2005 Through the
Present (Docket No. 137) is DENIED.
DATED this 27th day of January, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

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