Utah Republican Party v. Herbert et al
Filing
56
MEMORANDUM DECISION granting 44 Motion to Compel Plaintiff's Initial Disclosures; denying 44 Motion for Sanctions. Signed by Magistrate Judge Dustin B. Pead on 3/4/15 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH REPUBLICAN PARTY,
Plaintiff,
MEMORANDUM DECISION
CONSTITUTION PARTY OF UTAH,
Case No. 2:14-cv-00876-DN-DBP
Plaintiff and Intervenor,
District Judge David Nuffer
v.
Magistrate Judge Dustin B. Pead
GARY R. HERBERT, et al.,
Defendants.
I.
INTRODUCTION
This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (Dkt. 45.) This case
involves a dispute over certain changes to Utah’s election law, particularly Senate Bill 54 from
the 2014 legislative session. The matter is set for a preliminary injunction hearing on April 10,
2015. (Dkt. 43.) Presently before the Court is Defendants’ “Motion to Compel Plaintiff’s Initial
Disclosures and Request for Sanctions.” (Dkt. 44.)
II.
ANALYSIS
Defendants argue that Plaintiff’s initial disclosures were incomplete because Plaintiff
identified certain witnesses only by broad category, failed to provide contact information for
some witnesses, and attached no documents to its disclosures. (Dkt. 44.) The failure is
exacerbated because Plaintiff made its disclosures eight days late. (Id.) Despite numerous
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attempts by Defendants to meet and confer regarding these deficiencies, Plaintiff’s counsel failed
to contact Defendants until being ordered by the Court. Even after being ordered, Plaintiff’s
counsel waited to speak to Defendants until Defendants had already filed a report detailing failed
attempts to confer. 1 (Dkt. 54; see Dkt. 51.) Plaintiff does not dispute the substance of
Defendants’ motion. Instead, Plaintiff states that it is attempting to supplement its disclosures.
(Dkt. 54.) Plaintiff indicates that it has already turned over 600 pages of documents and intends
to produce more, along with amended initial disclosures by March 6, 2015. (Id.) Plaintiff asks
the Court to wait to rule on the motion to compel until that date. (Id.) Defendants filed a reply
agreeing that the motion could be deferred until March 6, but Defendants did not withdraw their
motion. (Dkt. 55.)
The motions are fully briefed and the Court does not find that deferring its ruling would be
helpful in moving this matter forward. It is undisputed that Plaintiff’s disclosures were deficient,
as well as tardy. Accordingly, Plaintiff must immediately cure these deficiencies. The parties
have agreed to a deadline of March 6, 2015. The Court accepts the parties’ suggestion. Thus,
Plaintiff is hereby ORDERED to submit complete initial disclosures by close of business on
March 6, 2015.
Notwithstanding the above, Defendants’ request for sanctions is hereby DENIED without
prejudice because it is premature. A party that fails to properly disclose a witness or other
information is precluded from using that information at subsequent hearings or at trial, unless the
failure is substantially justified or harmless (other sanctions may also be appropriate). Fed. R.
1
The Court is sensitive to counsel’s medical procedures and does not doubt the veracity of
counsel’s claims. (See Dkt. 54.) Yet, one of the procedures was anticipated and still counsel
made no effort to reach out to Defendants to resolve the discovery issue in advance of his
procedure. Further, the medical delay is only the latest in a series. Plaintiff’s initial disclosures
for its constitutional claims were due nearly a month ago. (See Dkt. 43.)
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Civ. P. 37(c); Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d 1124, 1130
(10th Cir. 2011). Plaintiff has not indicated that it intends to use additional witnesses beyond
what it has already disclosed. The Court cannot determine whether a failure to disclose is
justified or harmless without knowing who or what was not properly disclosed. Additionally,
with respect to the overdue documents, there has been no demonstration that Defendants will be
unable to adequately digest the information prior to the preliminary injunction hearing. Indeed,
the total volume of information is not yet known because Plaintiff has not yet provided
everything that it intends to disclose.
III.
ORDER
For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN PART
Defendants’ “Motion to Compel Plaintiff’s Initial Disclosures and Request for Sanctions.” (Dkt.
44.) Plaintiff must submit complete initial disclosures by close of business on March 6, 2015.
After reviewing the amended disclosures and associated documents, Defendants may renew their
motion for sanctions if necessary.
IT IS SO ORDERED.
Dated this 4th day of March, 2015.
By the Court:
Dustin B. Pead
United States Magistrate Judge
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