State Farm Fire and Casualty v. Helen of Troy, Limited et al

Filing 76

ORDER granting in part and denying in part plaintiff's 58 Motion to Exclude John Weiss and for Sanctions; supplemental briefing due within 7 days by Judge Ricardo S Martinez.(RS)

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  1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 13 Case No. C15-1771-RSM STATE FARM FIRE AND CASUALTY, as subrogee for Catherine Robinson, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO EXCLUDE JOHN WEISS AND SANCTIONS Plaintiff, v. 14 15 16 17 18 19 20 HELEN OF TROY, LLC, et al., Defendants. I. INTRODUCTION This matter comes before the Court on Plaintiff State Farm Fire and Casualty as subrogee for Catherine Robinson (“State Farm”)’s Motion to Exclude John Weiss and 21 Sanctions. Dkt. #58. State Farm moves the Court for an order striking Defendants’ witness 22 John Weiss and to impose sanctions for failing to disclose Mr. Weiss and for violating this 23 Court’s prior Order compelling discovery. Id.; see also Dkt. #52. Defendants oppose this 24 Motion, arguing that State Farm failed to meet and confer and that Plaintiff’s other contentions 25 26 27 are incorrect. See Dkt. #45. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART State Farm’s Motion. 28 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO EXCLUDE JOHN WEISS AND SANCTIONS - 1   II. 1 BACKGROUND 2 A full background of this case is not necessary for the purposes of this Motion. This 3 lawsuit resulted from a fire which largely destroyed the heating pad, manufactured by 4 Defendants, which State Farm alleges caused the fire. See Dkt. #1-2. 5 6 Initial disclosures were due in this case on April 22, 2016. Dkt. #15. Defendants 7 identified a single unnamed employee as a witness. Dkt. #59 at 2. Defendants did not disclose 8 expert witness Paul Way or witness John Weiss. Id. Defendants have never supplemented their 9 initial disclosures. Id. 10 On July 7, 2016, State Farm sent its first set of discovery requests to Defendants. Dkt. 11 12 #29-5. State Farm requested all documents regarding the software and hardware in the heating 13 pad and the design and manufacturing of heating pad controllers; the “manner in which the heat 14 pad monitors heat, current, and voltage,” all testing or certification of the software or hardware 15 in the Heating Pad, and heating pad certifications such as those by U.L. Dkt. #29-5. On August 16 15, 2016, Defendants served their answers. Dkt. #29-6. Every answer includes multiple 17 18 objections with limited or no substantive response. 19 State Farm filed a Motion to Compel the above discovery on October 13, 2016. Dkt. 20 #28. On December 21, 2016, the Court granted State Farm’s Motion and ordered Defendants to 21 fully and completely answer by January 6, 2017. Dkt. #52. On January 6, Defendants informed 22 23 State Farm via letter that they had produced “all testing documents in Kaz’s possession in 24 response to State Farm First Set of Discovery,” that they did not have the entire UL file, that 25 they did not have the patent for the heating pad, and that they could not locate a document 26 called the “Theory of Operation.” Dkt. #59 at 2-3. 27 On January 31, 2017, Defendants disclosed Mr. Weiss as a potential witness for the first 28 time via responses to discovery. Dkt. #59 at 3. Discovery closed on February 27, 2017. Dkt. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO EXCLUDE JOHN WEISS AND SANCTIONS - 2   1 2 #43. Prior to the closing of discovery, Defendants made an effort to arrange for the deposition of Mr. Weiss. See Dkt. #67-4. 3 4 III. DISCUSSION A. Legal Standard 5 6 Federal Rule of Civil Procedure 26(a)(1)(A) provides that “a party must, without 7 awaiting a discovery request, provide to the other parties… the name and, if known, the address 8 and telephone number of each individual likely to have discoverable information — along with 9 the subjects of that information….” Rule 26(e)(1)(A) further requires that a party must 10 supplement its initial disclosures “in a timely manner if the party learns that in some material 11 12 respect the disclosure or response is incomplete or incorrect, and if the additional or corrective 13 information has not otherwise been made known to the other parties during the discovery 14 process or in writing….” Where a party fails to comply with these obligations, “the party is not 15 allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a 16 trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The 17 18 party facing sanctions bears the burden of proving that its failure to disclose the required 19 information was substantially justified or is harmless. Torres v. City of L.A., 548 F.3d 1197, 20 1213 (9th Cir. 2008). Furthermore, Rule 26(a)(2) requires disclosure of expert testimony 21 accompanied by a written report prepared and signed by the witness. 22 23 If a party fails to comply with a discovery order, the Court may issue a variety of 24 sanctions including, inter alia, designating facts to be taken as established for purposes of the 25 action, prohibiting the disobedient party from opposing designated claims or from introducing 26 designated matters in evidence, and rendering a default judgment against the disobedient party. 27 Fed. R. Civ. P. 37(b)(2)(A). Attorney’s fees must be awarded “unless the failure was 28 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO EXCLUDE JOHN WEISS AND SANCTIONS - 3   1 2 3 substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). B. Meet and Confer Requirement 4 Defendants allege that State Farm has failed to meet and confer before filing this 5 6 Motion. However, State Farm is not moving to compel discovery under Rule 37(a). State 7 Farm is moving for relief from Defendants’ failure to disclose or supplement a witness, brought 8 under Rule 37(c), and for failure to comply with a court order, brought under Rule 37(b). 9 There is no meet and confer requirement for either type of motion. See Fed. R. Civ. P. 37; LCR 10 37. Defendants argue to the contrary, but their briefing contains several critical errors. First, 11 12 Defendants cite to non-existent Rule 37(a)(2)(A) with a block quote jamming together language 13 from Rule 37(a)(1) and 37(a)(3)(A). See Dkt. #66 at 5. This language applies to motions to 14 compel, not motions brought under Rule 37(b) or (c). Next, Defendants argue that a motion for 15 sanctions must include a good faith certification, quoting Local Rule 37(a)(1). Id. This local 16 rule also applies only to a motion to compel, not a motion brought under Rule 37(b) or Rule 17 18 37(c). Finally, Defendants cite to an out-of-circuit case for authority on motions to compel. Id 19 (citing Naviant Marketing Solutions, Inc. v. Larry Tucker, Inc., 339 F.3d 180, 187-87 (3rd Cir. 20 2003)). 21 State Farm did not point out any of the above errors in its Reply brief, instead 22 23 reiterating that its communications with Defendants satisfy the meet-and-confer requirement of 24 Rule 37(a). See Dkt. #68 at 1-3. Although the Court could find that State Farm sufficiently 25 met and conferred with Defendants to satisfy the Rule 37(a)(1) requirement, this requirement 26 does not apply to the instant Motion and will not serve as a basis for its denial. The Court 27 reminds the parties to thoroughly review the Federal Rules of Civil Procedure and this Court’s 28 Local Rules before incorrectly citing them in briefing. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO EXCLUDE JOHN WEISS AND SANCTIONS - 4   1 C. Motion to Exclude John Weiss 2 The Court has reviewed the arguments and facts cited by the parties on this topic. 3 Although State Farm is correct that Defendants failed to properly disclose John Weiss as a 4 witness in their initial disclosures and failed to supplement as required under Rule 26(e), 5 6 Defendants have met their burden of showing that these failures were harmless. See Torres, 7 548 F.3d at 1213. State Farm was aware of the addition of Mr. Weiss as a witness as early as 8 January 30, 2017, well before the close of discovery, allowing for the taking of a deposition if 9 State Farm so desired. State Farm was adequately informed as to the content of Mr. Weiss 10 planned testimony. 11 12 While the failure to disclose may have been harmless, Defendants’ apparent attempt to 13 get around the expert witness disclosure requirements is not. The Court is concerned by the use 14 of Mr. Weiss as a fact witness given the likelihood that his testimony will be “based on 15 scientific, technical, and specialized knowledge as he holds the patent for the subject heating 16 pad, provided a very lengthy summary of how the heating pad worked (Exh. 5), and, as Way 17 18 said, Weiss is ‘…really the expert…who knows this product more intimately than anybody 19 else.’” Dkt. #58 at 11 (citing Dkts. #59-5 and #59-1 at 101:8-10 (Way Deposition)). The Court 20 will thus deny Plaintiff’s request to exclude Mr. Weiss for failure to disclose, but based on the 21 record before it, the Court is not convinced that testimony from Mr. Weiss would be admissible 22 23 24 under the Rules of Evidence. D. Motion for Sanctions 25 State Farm argues that Defendants have failed to produce the complete U.L. file, 26 software, or a “written explanation” (in lieu of the Theory of Operation), despite these being 27 subjects of State Farm’s First Set of Discovery and the subsequent Court Order. Dkt. #58 at 8. 28 State Farm argues that these materials are available to Defendants. Defendants fail to address ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO EXCLUDE JOHN WEISS AND SANCTIONS - 5   1 this issue in their Response brief. See Dkt. #66. On Reply, State Farm credibly argues that 2 these documents go to the key issues in this case: “how the heating pad is designed, whether it 3 was manufactured to that design and whether the heating pad caused the fire.” Dkt. #68 at 4. 4 State Farm requests the Court impose the most drastic sanction it can, default judgment against 5 6 Defendants. Id. at 5-6. 7 Defendants place the Court in a difficult position by failing to respond to this portion of 8 State Farm’s Motion. On the other hand, State Farm fails to show how the missing documents 9 so severely prejudice Plaintiffs as to warrant the extreme sanction of default judgment, and fails 10 to provide meaningful guidance on how the Court could impose a less severe sanction. 11 12 Accordingly, the Court will request supplemental briefing from the parties. The Court 13 does not need further argument on whether sanctions should be imposed at all, or why default 14 judgment is appropriate. Instead, the Court requests from each party briefing on how to craft 15 an appropriate sanction under Rule 37(b)(2)(A)(i)-(ii). No other topic is to be discussed. 16 Regardless of the sanction imposed, the Court “must order the disobedient party… to 17 18 pay the reasonable expenses, including attorney’s fees, caused by the failure [to comply with a 19 Court Order]…” Fed. R. Civ. P. 37(b)(2)(C). Defendants’ silence on the topic of sanctions 20 forecloses any argument that their failure was “substantially justified” or that “other 21 circumstances make an award of expenses unjust.” See id. Thus the Court will Order 22 23 24 Defendants to pay State Farm’s reasonable expenses in bringing this Motion and in drafting the Court’s requested supplemental briefing. 25 26 27 IV. CONCLUSION 28 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO EXCLUDE JOHN WEISS AND SANCTIONS - 6   1 2 3 4 Having reviewed the relevant briefing, the declarations and exhibits attached thereto, and the remainder of the record, the Court hereby finds and ORDERS: (1) Plaintiff State Farm’s Motion to Exclude John Weiss and Sanctions (Dkt. #58) is DENIED with regard to excluding John Weiss and GRANTED IN PART with 5 6 regard to sanctions. 7 (2) The Court requests supplemental briefing as to an appropriate sanction as described 8 above. This briefing shall be submitted no later than seven (7) days from the date 9 of this Order and may not exceed five (5) pages in length. No response or reply 10 brief is permitted. 11 12 (3) No later than ten (10) days from the date of this Order, State Farm shall file a 13 Motion for Attorneys’ Fees, noting it for consideration the second Friday after filing 14 and service of the Motion. The Motion shall be limited to five (5) pages and be 15 supported by documentary evidence reflecting only the amount of reasonable fees 16 and costs incurred in filing the instant Motion and requested supplemental briefing. 17 18 Plaintiffs may file a Response no later than the Wednesday before the noting date, 19 addressing only the reasonableness of the fees and costs requested, and limited to 20 five (5) pages. No Reply is permitted. 21 DATED this 31 day of May, 2017. 22 23 24 25 A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 26 27 28 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO EXCLUDE JOHN WEISS AND SANCTIONS - 7

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