Commercial Litigation and Arbitration

Experts — Sanctions — Discretion Shrinks as Severity Grows

From Junk v. Terminix Intl. Co., 2008 U.S. Dist. LEXIS 102161 (S.D. Iowa Aug. 15, 2008):

"When a party fails to provide information or identify a witness in compliance with Rule 26(a) or (e), the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case. Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (internal citations omitted). "We note, however, that the district court's discretion narrows as the severity of the sanction or remedy it elects increases." Id. "When fashioning a remedy, the district court should consider, inter alia, the reason for the noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of trial, and the importance of the information or testimony." Id. (internal citations omitted).

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