SUSAN ILLSTON, District Judge.
On November 27, 2018, the Court held a final pretrial conference in the above captioned matter, which is set for bench trial beginning December 10, 2018. Plaintiff was represented by counsel. Defendant Maxaco, LLC, did not appear at the pretrial conference. After the pretrial conference concluded, counsel for defendant contacted the courtroom deputy and said that he thought the conference was at 3:30 p.m., not 2:00 p.m.
The following matters were resolved at the pretrial conference:
This motion is based on Federal Rule of Civil Procedure 37 and follows from defendant's failure to disclose documents in accordance with Rule 26. Rule 37(c) states that "[i]f 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." Fed. R. Civ. P. 37(c)(1).
As explained below, defendant has failed to comply with its obligations under the Federal Rules of Civil Procedure, including a failure to identify documents in its initial and pretrial disclosures under Rule 26(a), to produce discovery, or to supplement its discovery responses under Rule 26(e).
In support of his motion, plaintiff provides declarations and exhibits showing that on November 15, 2017, defendant provided its initial disclosures under Rule 26(a). Rule 26(a) requires, among other items, that "a party must, without awaiting a discovery request, provide to the other parties . . . (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[.]" Fed. R. Civ. P. 26(a)(1)(A). Rule 26(e) imposes an ongoing obligation to supplement disclosures made under Rule 26(a) "in a timely manner[.]" Fed. R. Civ. P. 26(e).
In its initial disclosures, defendant listed three categories of documents it may use: "Documents evidencing the subject property[;] Photographs evidencing the subject property[; and] Public records which may be obtained in the future." Dkt. No. 76-1 ("Moore Decl. No. 1"), Ex. A at 2. Counsel for plaintiff has filed a declaration stating that "Maxaco has produced absolutely no documents in this action or supplemented its initial disclosures or discovery responses, formally or informally. Maxaco has thus produced no documents from the City of Berkeley, or any documents whatsoever." Moore Decl. No. 1 ¶ 5.
In its opposition to the motion in limine, defendant does not dispute that it did not provide documents in its initial disclosures. Rather, defendant appears to argue that it did not need to do so because such documents were not in its possession at the time of initial disclosures and states that defendant has or will supplement its disclosures to plaintiff "in a timely manner as per F.R.C.P. 26(e)." See Dkt. No. 86 at 2.
On April 11, 2018, plaintiff requested that defendant produce any and all documents relating to any and all architectural or detailed plans regarding the property (RFP No. 1), any and all documents regarding building permits for the property since the date it was built (RFP No. 9), and any and all documents identified in defendant's initial disclosures (RFP No. 14). Moore Decl. No. 1, Ex. B at 3, 5. On June 14, 2018, defendant provided a response
Id. at 2, 4. Defendant provided the same response to RFP No. 14, with the exception of the penultimate sentence regarding public records. See id. at 5-6. Plaintiff's counsel states that defendant never produced any documents. Moore Decl. No. 1 ¶ 5. Defendant states in opposition that it produced public records and photos from the City of Berkeley on November 15, 2018, discussed further below. See Dkt. No. 86-1 ("Peter Magganas Decl.") ¶ 5.
In its pretrial disclosures, defendant listed the following documents that it expects to offer at trial:
Dkt. No. 73 at 2.
Defendant also listed the following documents that it may offer at trial if the need arises:
Id.
Rule 26(a)(3) imposes an affirmative requirement regarding pretrial disclosures:
See Fed. R. Civ. P. 26(a)(3)(A). Defendant's pretrial disclosures fail to provide the level of detail that the Federal Rules require.
The only documents that defendant states it produced at any time in this litigation are records and photos from the City of Berkeley. Defense counsel states that "Defendant was able to obtain public records and photos from the City of Berkeley on November 15, 2018. Those records and photos were provided to Plaintiff on November 15, 2018 via Rule 26 supplemental disclosure."
With the exception of Supplemental Exhibit A, the Court will not permit defendant to introduce these records at trial. As already detailed, defendant produced these records late. If defendant wanted to introduce the documents at trial, it should have complied with its disclosure obligations under Rule 26. A party may not avoid its disclosure obligations by simply failing to obtain physical custody of the documents in a timely manner, and defendant has not explained why, if indeed it did not have the permit applications within its custody, it could not have obtained these public records sooner than November 15, 2018. Defendant is the one who put the permitting process at issue in this case, see, e.g., Dkt. No. 57 at 4, and if defendant wanted to use recent permit application documents, defendant should have produced them in accordance with the Federal Rules.
As to Supplemental Exhibit A, this document is significant mainly for establishing the year that the structure at issue was built. The Court is mindful that one of the factors to be weighed in determining whether a party is entitled to discovery is "the parties' relative access to relevant information." See Fed. R. Civ. P. 26(b)(1). Presumably, this information was available to plaintiff through other means. Moreover, plaintiff has long been on notice that the year of construction would be a determinative issue in the trial.
To summarize, plaintiff timely requested the documents in question, and Rule 26 imposes affirmative disclosure requirements on defendant. Defendant has failed to comply with its discovery obligations regarding documentary evidence, and the Court finds this failure was not substantially justified or harmless.
Accordingly, the Court GRANTS IN PART plaintiff's motion to preclude defendant from introducing documentary evidence except for the limited purpose of impeachment. As to Supplemental Exhibit A that defendant produced on November 15, 2018, the Court DENIES the motion in limine, without prejudice to renewal at the time of trial. If defendant seeks admission of this record at trial, it shall be prepared to properly authenticate the document as required by the Federal Rules of Evidence.
This motion is based on defendant's failure to comply with the Rule 26 requirements regarding expert witness disclosures. Rule 26(a)(2) requires that parties disclose expert witnesses whom they "may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed. R. Civ. P. 26(a)(2)(A). The expert witness disclosure
Fed. R. Civ. P. 26(a)(2)(B). Even for those witnesses not required to provide a written report, the expert disclosure "must state:
The deadline for expert witness disclosures was August 20, 2018. Dkt. No. 51 at 1. Sometime in August, defendant sent plaintiff an expert witness disclosure. Plaintiff states that defendant's proposed expert was not disclosed until ten days after the deadline. Dkt. No. 77 at 2. Defense counsel states that he served the expert disclosure by mail on August 20, 2018.
Defendant's expert witness disclosure "designate[d] the following persons to testify at trial under Federal Rules of Evidence 702, 703, and/or 705: Athan Magganas; Moshe Dinar." Dkt. No. 77-1 (" Moore Decl. No. 2"), Ex. A at 1. It further stated, "Athan Magganas is expected to testify as to the costs, timeframes, process and other related matters associated with construction, property management, city permitting and requirements and related matters." Id. Defendant apparently provided no expert report or further summary of the expected testimony.
In its pretrial disclosures, defendant listed the following witnesses expected to be called at trial:
Dkt. No. 73 at 2. Still, defendant has not provided an expert report from Athan Magganas or even a summary of the facts and opinions to which he is expected to testify. Defense counsel has filed a declaration essentially stating that he thought Athan Magganas gave plaintiff an expert report, but defense counsel does not attach the report to the opposition brief and does not provide any documentation that such an expert report was actually served. The declaration states, "I was out of the country beginning in mid September but recall receiving another email from Plaintiff and instructed Athan Magganas to submit a report to the effect of what was said in the expert disclosures to Plaintiff. I recall Athan Magganas saying he would do that that day. That was sometime in late September." Peter Magganas Decl. ¶ 8.
Moreover, it is unclear from the papers whether plaintiff had the opportunity to depose Athan Magganas about the facts and opinions to which he would testify. Plaintiff deposed Athan Magganas as the Rule 30(b)(6) witness for Maxaco, LLC, on July 18, 2018. After defendant identified Athan Magganas as a proposed expert witness in August 2018, plaintiff requested further information to determine whether another deposition was needed; defense counsel refused to comply, stating, "you have already heard what Mr. Magganas has to say." See Moore Decl. No. 2, Ex. B. Defendant repeatedly states in its opposition that plaintiff could have deposed Mr. Magganas, but it is not clear that defense counsel made his client available. See Dkt. No. 87 at 3. As an example of how this has prejudiced plaintiff, defendant states that Athan Magganas will testify to "his experience as a builder of 40 years," see Peter Magganas Decl. ¶ 9, but it is unclear whether plaintiff was able to obtain information regarding this experience because defense counsel repeatedly obstructed plaintiff's attempts to ask questions about Athan Magganas's employment history at his deposition. See Moore Decl. No. 2, Ex. C.
In light of defendant's failure to comply with Rule 26(a)(2) and (e), the Court GRANTS plaintiff's motion to exclude expert witness testimony from Athan Magganas. This ruling does not, however, impact defendant's ability to call Athan Magganas as a non-expert witness if his testimony otherwise complies with the Federal Rules of Evidence.
