MEMORANDUM OF CONFERENCE AND RULING ON MOTIONS
SARAH A. L. MERRIAM, Magistrate Judge.
On October 4, 2016, this Court held a telephonic Status Conference on the record. Plaintiff Franklin Brown ("plaintiff"), appearing pro se, and counsel for defendant, Attorney Christopher A. Clark, participated in the conference. The following summarizes the pertinent discussions held during the October 4, 2016, conference.
I. Plaintiff's Motion to Amend the Complaint and Motion for Joinder of Claims and Parties [Docs. ##94, 95]
Pending before the Court are plaintiff's Motion for Leave to File an Amended Complaint, and plaintiff's Motion for Joinder of Claims and Parties. [Docs. ##94, 95]. In both motions, plaintiff seeks to amend his Complaint to add claims of: assault and battery; false arrest; and section 1983 claims against proposed new defendants Captain Patrick Howard, Chief William McKenna, Captain Wallace, Lieutenant Davis, and the City of Middletown. See Docs. ##94, 95. In support of his motions, plaintiff contends that newly discovered evidence warrants the amendment and the addition of parties. See Doc. #94-1 at 1, 3-4; Doc. #95 at 1. Plaintiff attaches police investigatory records and an affidavit from witness Karen Rogala as exhibits in support of his motion, but his motion does not discuss how these materials constitute "new evidence," when the information was received, or how it supports his proposed new claims. See Docs. ##94, 95. Defendant opposes plaintiff's motion, arguing, inter alia, that plaintiff has failed to show good cause for filing his motion beyond the deadline to amend the pleadings; that the proposed amendments are futile; and that the amendments would be prejudicial to defendant. See Doc. #97.
At the October 4, 2016, conference, plaintiff explained that the newly acquired evidence was produced by defendant during the course of discovery, and received by plaintiff on February 22, 2016. Plaintiff contended that the records attached to his "Motion for Joinder of Claims and Parties" [Doc. #94] provide the "new evidence" necessitating the filing of an amended complaint and supporting the proposed new claims. The Court requested that plaintiff point to a particular piece of "new evidence" and explain how it supports the new proposed claims.
Plaintiff pointed to a record bearing Bates number BROWN 00089, and specifically to the paragraph in the middle of that page under the title "Confidential Interview." See Doc. #94-2 at 12. This document is the report of an internal investigation into plaintiff's civilian complaint after his arrest; the claims raised in the civilian complaint are similar to those asserted in this federal case. The paragraph relied upon by plaintiff contains a statement from a witness who asserts that plaintiff sold crack to her, using Karen Rogala as an intermediary, shortly before the arrest plaintiff challenges. The witness also reports that a man attempted to get plaintiff to sell him crack that night but plaintiff refused because he believed the man to be a "snitch." At the conference, plaintiff asserted that this paragraph supports plaintiff's assertion that defendant Dirga did not observe him making a hand-to-hand transaction immediately before his arrest, and thus that Dirga's stated basis for the arrest is false.
Plaintiff acknowledged at the conference that the "new evidence" attached to his motion was produced by defendant seven months before he filed the motions, but stated that he had been unaware until recently that he could move to amend his complaint. For the reasons set forth below, plaintiff's motions are DENIED.
A. Legal Standard
Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend his pleading "only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Rule 21 governs the addition of parties: "On motion or on its own, the court may at any time, on just terms, add or drop a party." Fed. R. Civ. P. 21.
With respect to the interaction of Rules 15(a) and 21, it has been held that Rule 15(a) generally governs the amendment of complaints, but in the case of proposed amendments where new defendants are to be added, Rule 21 governs. The perceived supremacy of Rule 21 is, however, of no practical consequence, since it is generally held that the standards governing motions to amend under Rule 15 apply with equal force to motions to add parties under Rule 21.
Meyers v. Kishimoto, No. 3:14CV535(CSH), 2015 WL 4041438, at *3 (D. Conn. July 1, 2015) (quotation marks and internal citations omitted).
In determining whether to grant leave to amend, the Supreme Court has held:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.'
Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, where, as here, a plaintiff moves for leave to amend his complaint to add new claims and parties, a court will look to whether the opposing party is unduly prejudiced, whether plaintiff has unduly delayed in seeking the proposed amendment, and whether the proposed amendment would be futile. See, e.g., Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) ("Leave to amend should be freely granted, but the district court has the discretion to deny leave if there is a good reason for it, such as futility, bad faith, undue delay, or undue prejudice to the opposing party."(citing Foman, 371 U.S. at 182)). With these factors in mind, the Court turns to plaintiff's proposed Amended Complaint.
B. False Arrest
Plaintiff's proposed Amended Complaint asserts a new claim for false arrest. "Favorable termination is an element of a section 1983 claim sounding in false imprisonment or false arrest." Miles v. City of Hartford, 445 F. App'x 379, 383 (2d Cir. 2011). Further, a claim for false arrest may not succeed where plaintiff has entered a guilty plea. See Maietta v. Artuz, 84 F.3d 100, 103 n.3 (2d Cir. 1996) ("We have also ruled that... common law principles preclude a challenge to the validity of an arrest after a guilty plea, for purposes of a civil suit under 42 U.S.C. § 1983." (citing Cameron v. Fogarty, 806 F.2d 380, 386-89 (2d Cir. 1986)). Here, plaintiff pled guilty to the underlying crime and was convicted. See Doc. #97-9 at 3-4 (transcript of plaintiff's deposition, in which plaintiff admits to having pled guilty to the narcotics charge). The Court has reviewed the documents attached in support of plaintiff's motion. None of these records suggests that plaintiff's conviction has been invalidated or reversed. Thus, plaintiff cannot maintain a section 1983 action based on false arrest. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see also Simmons v. Simpson, No. 3:04CV2044(RNC), 2005 WL 2850078, at *1 (D. Conn. Oct. 29, 2005). Accordingly, the Court finds that amendment to permit the addition of a false arrest claim would be futile.
C. Individual Supervisory Defendants
Plaintiff also seeks to bring a section 1983 claim against new individual defendants for their alleged failure to supervise Officer Dirga, the sole defendant currently named in this action. See Doc. #94 at 1, Doc. #95-2 at 3-4.
To establish that a municipality's failure to train or supervise constitutes deliberate indifference to the constitutional rights of citizens, plaintiff must show (1) that a policymaker knows `to a moral certainty' that her employees will confront a given situation; (2) that the situation either presents that employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation; and (3) that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights.
Rodriguez v. City of New York, 649 F.Supp.2d 301, 307 (S.D.N.Y. 2009) (quoting Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992)); see also Reynolds v. Guiliani, 506 F.3d 183, 192 (2d Cir. 2007). Further, to state a claim under section 1983, plaintiff must allege the personal involvement of an individual defendant. See Costello v. City of Burlington, 632 F.3d 41, 48-49 (2d Cir. 2011) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
The proposed Amended Complaint contains no allegations of facts that would support a claim of failure to supervise under section 1983, nor are there any allegations in the proposed Amended Complaint that establish that the proposed new individual defendants personally participated in any alleged misconduct. "This defect is fatal to [plaintiff's] claim under 42 U.S.C. § 1983." Costello, 632 F.3d at 49. Accordingly, the proposed amendment adding claims against Captain Howard, Chief McKenna, Captain Wallace, and Lieutenant Davis would be futile and is therefore denied.
D. City of Middletown
Plaintiff also seeks to amend his complaint to allege a section 1983 claim against the City of Middletown. Plaintiff alleges that "[i]t was the policy and/or custom of the City of Middletown to inadequately and improperly investigate citizen complaints of police misconduct," and "to inadequately supervise and train its police officers[.]" Doc. #95-2 at 4. As the Court has already noted, plaintiff must demonstrate that there is a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); see also Doc. #8 at 5.
Plaintiff, however, has not alleged any facts that support these allegations. Further, plaintiff was unable to articulate at the conference how any of the information contained in the records attached to his motion suggests an unconstitutional municipal policy or custom that would give rise to a section 1983 claim against the City of Middletown. As discussed above, the portion of the report of the investigation into plaintiff's civilian complaint on which plaintiff focuses bears no relation at all to supervision issues. It was prepared after the fact, and contains no information suggesting that the supervision of Officer Dirga prior to the arrest of plaintiff was improper.1 Accordingly, the Court finds that the addition of this claim would be futile, and is denied.
E. Assault and Battery
Finally, plaintiff seeks to add a claim for assault and battery against defendant Dirga. Plaintiff is currently proceeding with a claim against defendant Dirga in his individual capacity for the use of excessive force in violation of plaintiff's Fourth Amendment rights. At the conference, defendant argued that the addition of a state claim for assault and battery would require the reopening of plaintiff's deposition, additional interviews of witnesses and police officers, and other discovery, as the proposed state law claim has different elements and defenses than the existing federal claim for excessive force. See, e.g., Conn. Gen. Stat. § 53a-22 (statutory authority for use of force in arrest); Brown v. Robishaw, 922 A.2d 1086, 1092 (2007) ("[I]t is well established that the defense of self-defense is available to a defendant faced with the intentional torts of civil assault and battery[.]").
The Court agrees with defendant that the addition of this claim, beyond the discovery deadline, would cause undue prejudice to the defendant. "A court may deny a motion to amend when the movant knew or should have known of the facts upon which the amendment is based when the original pleading was filed, particularly when the movant offers no excuse for the delay. Moreover, when the amendment is sought after discovery has been closed, prejudice may be found." Ruotolo v. City of New York, No. 03CV5045(SHS), 2006 WL 2372236, at *2 (S.D.N.Y. Aug. 16, 2006), aff'd, 514 F.3d 184 (2d Cir. 2008) (internal citations and quotation marks omitted) (collecting cases); see also St. John v. Arnista, No. 3:05CV120(WWE), 2007 WL 3355385, at *2 (D. Conn. Nov. 9, 2007) ("With respect to the request to add claims ... the court concludes that the addition of those claims would unnecessarily delay the litigation of this action and also prejudice the defendant." (citation omitted)).
F. Undue Delay and Prejudice
The Court finds that all of the proposed amendments are barred because there was undue delay in the plaintiff's filing of the request to amend, and permitting the complaint to be amended at this late date would be unduly prejudicial to defendant.
The deadline for the completion of fact discovery in this matter was September 23, 2016, only four days after plaintiff filed the instant motions. The evidence that plaintiff claims is newly discovered was in fact produced by defendant and received by plaintiff in February 2016, over seven months before the motions were filed. Plaintiff also asserted during the conference that an attorney appointed to represent him in a state court matter had advised him in June that he should seek to amend his complaint, and still he waited until September, as discovery was closing. Plaintiff had ample time to review the documents in his possession and move to add claims or parties prior to the deadline for the close of discovery. He has offered no persuasive reason for his lengthy delay in filing the motion to amend.
Furthermore, the "new evidence" received by plaintiff in February does not support the proposed amendments. The affidavit of Karen Rogala contains her report of the incident; plaintiff has been in contact with Ms. Rogala throughout this litigation and before it was filed, and thus has been well aware of her version of events for years. The report summarizing the investigation of the civilian complaint adds some interesting detail to the events of the night in question, but no new information that would support any of the new claims proposed by plaintiff.
Permitting amendment of substantive claims and addition of new parties at this late date, three years after the incident in question, after the close of discovery, on the eve of the dispositive motions deadline, would also be unduly prejudicial to defendant. The plaintiff has already been deposed. Both parties have engaged in discovery, and the Court has been required to resolve several disputes. Adding new defendants and new claims now would require the reopening of discovery, the re-deposition of plaintiff, and new depositions and document discovery. As noted above, the Court does not find that the proposed amendments are supported by the "new evidence" proffered. Accordingly, the Court finds that the factors of unreasonable delay and undue prejudice support denial of the motion to amend.
G. Conclusion
The Court concludes that the addition of the proposed parties and claims would be futile, and would cause prejudice to defendant at this stage in the proceeding, and that plaintiff's request was unduly delayed. The Court sees no justification to permit the amendment of plaintiff's Complaint at this time. Accordingly, plaintiff's Motion for Leave to File an Amended Complaint and Motion for Joinder of Claims and Parties are DENIED.
II. Affidavit of Karen Rogala
Plaintiff's Motion for Joinder of Claims and Parties attaches an affidavit from Karen Rogala, a witness in this matter. See Doc. #94-3. In defendant's opposition to plaintiff's motion, and again at the October 4, 2016, conference, defendant argued that Ms. Rogala's testimony should be precluded, as defendant's efforts to serve her with a deposition notice and a subpoena have been wholly unsuccessful. Specifically, defendant contends that he attempted to serve Ms. Rogala with a notice and a subpoena at her last known address of 37 Coles Road, Cromwell, Connecticut; he has requested her contact information and whereabouts from plaintiff on multiple occasions; and he has effected an abode service on Ms. Rogala at her last known address. See Doc. #97 at 13-14. Ms. Rogala failed to appear for her deposition on July 27, 2016. Id. at 14.
At the conference, plaintiff stated on the record that he has spoken recently to Ms. Rogala on the phone, and that he speaks with her often. He stated that he received her affidavit dated September 9, 2016, by mail, and the envelope bore a return address matching Ms. Rogala's last known address of 37 Coles Road. Plaintiff stated that Ms. Rogala has expressed to him that she does not wish to be subpoenaed and therefore she will not reveal her whereabouts.
Rule 26(a) of the Federal Rules of Civil Procedure governs the parties' mandatory initial disclosures. Rule 26(a)(1)(A)(i) requires disclosure of:
the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.]
Fed. R. Civ. P. 26(a)(1)(A)(i). Each party has a duty to disclose new information as it becomes available:
A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or request for admission — must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court.
Fed. R. Civ. P. 26(e). If a party fails to comply with these Rules,
the party is not 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. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;(B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1).
Here, it has been clear since the filing of this case that Ms. Rogala is a key witness for plaintiff; indeed, she was originally named as a plaintiff. It is also evident that plaintiff is in regular contact with Ms. Rogala, both by telephone and by mail. While plaintiff has represented to the Court that he does not have additional contact information for Ms. Rogala, other than that already provided, her submission of an affidavit in support of his recent motions strongly suggests that he is able to locate her as needed. Defense counsel, however, in spite of making repeated efforts including abode service, has been unable to secure Ms. Rogala's deposition testimony.
Thus, as the Court explained at the conference, plaintiff cannot call Ms. Rogala at trial to offer evidence in support of his claims if he has not supplied updated, accurate contact information to defendant's counsel, and if Ms. Rogala has refused to cooperate with the efforts to take her deposition. The circumstances put defense counsel in the untenable position of having to confront a key witness at trial whom he has not previously been able to interview or depose, while plaintiff has had regular access to her throughout the pendency of the case. See, e.g., Harewood v. Braithwaite, No. 09CV2874(PKC), 2013 WL 5366391, at *4 (E.D.N.Y. Sept. 23, 2013) (Testimony of an alibi witness was precluded after he refused to be deposed when subpoenaed, because if the witness were permitted to testify, "[d]efendant would be prejudiced by having to confront his testimony for the first time at trial."); Yu Chen v. LW Rest., Inc., No. 10CV200(ARR), 2011 WL 3420433, at *21 (E.D.N.Y. Aug. 3, 2011) ("Moreover, as discovery has long closed by now, defendants will be precluded from presenting any witnesses who have not been produced for depositions or any other evidence which has not been produced to plaintiffs.").
As discussed at the conference, the Court declines to impose the sanction of preclusion at this time. This issue has only recently been brought to the Court's attention. It appears that plaintiff has not timely disclosed information regarding Ms. Rogala's whereabouts to defendant. In light of plaintiff's status as a self-represented party, however, the Court wishes to ensure that he is fully aware of the potential consequences of his repeated failure to produce this witness. See Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 270 (2d Cir. 1999) (upholding preclusion, noting that a party had "an adequate opportunity to argue against the preclusion of the proposed testimony of" uncooperative witnesses where party had "specific notice" that preclusion was a possible sanction).
Accordingly, the Court will permit plaintiff an additional opportunity to ensure that Ms. Rogala appears for a deposition as duly noticed by defendant. Defendant shall notice the deposition of Ms. Rogala for a date on or before December 1, 2016, by sending written notice to her last known address of 37 Coles Road, Cromwell, Connecticut. Counsel shall also send a copy of the notice to plaintiff at his address of record. Plaintiff must make his best efforts to ensure that Ms. Rogala appears as directed. Should plaintiff become aware of additional contact information or a different service address for Ms. Rogala, he must notify counsel for the defendant immediately. If Ms. Rogala again fails to appear for the re-noticed deposition, plaintiff will be precluded from offering her testimony at trial or relying on any other evidence from her in this matter, pursuant to Rule 37(c). The Court has attached copies of Rules 26 and 37 to this order for plaintiff's information.
III. Scheduling Order
At the October 4, 2016, conference, the Court also discussed the operative Scheduling Order (Doc. #79). The Court hereby reopens fact discovery in this matter for the limited purpose of conducting a deposition of Ms. Rogala. Defendant may conduct the deposition of Ms. Rogala on or before December 1, 2016. No further fact discovery shall be permitted during this timeframe. All other deadlines remain unchanged. On or before December 2, 2016, defendant shall file a notice informing the Court whether Ms. Rogala appeared for her deposition, and detailing what, if any, additional discovery defendant believes is warranted based on Ms. Rogala's testimony.
IV. Medical Authorization
At the conference, defendant informed the Court that he has had difficulty obtaining signed authorizations from plaintiff to release plaintiff's medical and non-medical records from his period of incarceration. On the record, plaintiff represented that he had signed the authorization to release his medical records and will send the authorization to defendant. However, plaintiff does not consent to release any information regarding his history of incarceration, and therefore refuses to sign the non-medical release. Defendant has not filed a motion to compel production of these records, and has not proffered any persuasive basis for requesting plaintiff's records from the Department of Correction that are unrelated to medical issues. Should defendant determine that the signed authorization he receives from plaintiff is insufficient, he should file a motion to compel immediately.
This is not a Recommended Ruling. This is an order regarding case management which is reviewable pursuant to the "clearly erroneous" statutory standard of review. See 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an order of the Court unless reversed or modified by the District Judge upon motion timely made.
SO ORDERED.
United States Code Annotated
Federal Rules of Civil Procedure for the United States District Courts (Refs & Annos)
Title V. Disclosures and Discovery (Refs & Annos)
Federal Rules of Civil Procedure Rule 26
Rule 26. Duty to Disclose; General Provisions Governing Discovery
Currentness
<Notes of Decisions for 28 USCA Federal Rules of Civil Procedure Rule 26 are displayed in two separate documents. Notes of Decisions for subdivisions I to III are contained in this document. For Notes of Decisions for subdivisions IV to end, see second document for 28 USCA Federal Rules of Civil Procedure Rule 26.>
(a) Required Disclosures.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) 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;
(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
(i) an action for review on an administrative record;
(ii) a forfeiture action in rem arising from a federal statute;
(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
(v) an action to enforce or quash an administrative summons or subpoena;
(vi) an action by the United States to recover benefit payments;
(vii) an action by the United States to collect on a student loan guaranteed by the United States;
(viii) a proceeding ancillary to a proceeding in another court; and
(ix) an action to enforce an arbitration award.
(C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.
(D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
(E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.
(D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
(i) at least 90 days before the date set for trial or for the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.
(E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).
(3) Pretrial Disclosures.
(A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:
(i) the name and, if not previously provided, the address and telephone number of each witness—separately identifying those the party expects to present and those it may call if the need arises;
(ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and
(iii) an identification of each document or other exhibit, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises.
(B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made— except for one under Federal Rule of Evidence 402 or 403—is waived unless excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.
(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
(i) a written statement that the person has signed or otherwise adopted or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement.
(4) Trial Preparation: Experts.
(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b) (3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
(E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and
(ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.
(5) Claiming Privilege or Protecting Trial-Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
(c) Protective Orders.
(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
(2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.
(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
(d) Timing and Sequence of Discovery.
(1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
(2) Early Rule 34 Requests.
(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) to that party by any other party, and
(ii) by that party to any plaintiff or to any other party that has been served.
(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.
(3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery.
(e) Supplementing Disclosures and Responses.
(1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.
(f) Conference of the Parties; Planning for Discovery.
(1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
(2) Conference Content; Parties' Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
(3) Discovery Plan. A discovery plan must state the parties' views and proposals on:
(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;
(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).
(4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:
(A) require the parties' conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and
(B) require the written report outlining the discovery plan to be filed less than 14 days after the parties' conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.
(g) Signing Disclosures and Discovery Requests, Responses, and Objections.
(1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name—or by the party personally, if unrepresented—and must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
(2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention.
(3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.
CREDIT(S)
(Amended December 27, 1946, effective March 19, 1948; January 21, 1963, effective July 1, 1963; February 28, 1966, effective July 1, 1966; March 30, 1970, effective July 1, 1970; April 29, 1980, effective August 1, 1980; April 28, 1983, effective August 1, 1983; March 2, 1987, effective August 1, 1987; April 22, 1993, effective December 1, 1993; April 17, 2000, effective December 1, 2000; April 12, 2006, effective December 1, 2006; April 30, 2007, effective December 1, 2007; April 28, 2010, effective December 1, 2010; April 29, 2015, effective December 1, 2015.)
Fed. Rules Civ. Proc. Rule 26, 28 U.S.C.A., FRCP Rule 26
Including Amendments Received Through 8-1-16
United States Code Annotated
Federal Rules of Civil Procedure for the United States District Courts (Refs & Annos)
Title V. Disclosures and Discovery (Refs & Annos)
Federal Rules of Civil Procedure Rule 37
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Currentness
(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
(2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under Rule 30 or 31;
(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submitted under Rule 33; or
(iv) a party fails to produce documents or fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34.
(C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
(B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
(b) Failure to Comply with a Court Order.
(1) Sanctions Sought in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending.
(2) Sanctions Sought in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
(B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person.
(C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not 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. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
(2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:
(i) a party or a party's officer, director, or managing agent—or a person designated under Rule 30(b)(6) or 31(a) (4)—fails, after being served with proper notice, to appear for that person's deposition; or
(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.
(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).
(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
(f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.
CREDIT(S)
(Amended December 29, 1948, effective October 20, 1949; March 30, 1970, effective July 1, 1970; April 29, 1980, effective August 1, 1980; amended by Pub.L. 96-481, Title II, § 205(a), October 21, 1980, 94 Stat. 2330, effective October 1, 1981; amended March 2, 1987, effective August 1, 1987; April 22, 1993, effective December 1, 1993; April 17, 2000, effective December 1, 2000; April 12, 2006, effective December 1, 2006; April 30, 2007, effective December 1, 2007; April 16, 2013, effective December 1, 2013; April 29, 2015, effective December 1, 2015.)
Fed. Rules Civ. Proc. Rule 37, 28 U.S.C.A., FRCP Rule 37
Including Amendments Received Through 8-1-16
