Commercial Litigation and Arbitration

Documents Produced after Discovery Cut-Off Date, without Judicial Permission, May Not be Relied upon by Producing Party or Its Experts

Techsavies, LLC v. WFDA Mktg., Inc., 2011 U.S. Dist. LEXIS 152833 (N.D. Cal. Feb. 23, 2012):

The Pretrial Scheduling Order (Docket No. 20) also requires that "[t]hirty days prior to the close of non-expert discovery, lead counsel for each party shall serve and file a certification that all supplementation has been completed." WDFA did not file such a certification. Instead, WDFA improperly produced its late documents as well as its interrogatory response after fact discovery closed and without obtaining leave from the Court. Local Rule 37-3 explicitly requires that "[u]nless otherwise ordered, as used in any order of this Court or in these Local Rules, a 'discovery cutoff' is the date by which all responses to written discovery are due. . ." FRCP 16(b)(4) similarly only allows a party to obtain relief from a "cut-off" date "for good cause and with the judge's consent." Prior to the close of discovery, WDFA's duty to correct was self-effectuating. However, it appears to be an issue of first impression whether a party can correct its discovery responses after the close of discovery without seeking leave of Court. In my opinion, absent an approved stipulation, allowing one party to correct prior discovery responses without seeking leave of Court undermines the Court's ability to control the timely production of documents and assure that discovery issues are resolved in a timely fashion so as not to interfere with the impending trial. See Local Rule 37-3; FRCP 16(b)(4). Moreover, substantial document production after the close of discovery frequently requires the adjustment of the pretrial and trial schedule to allow the receiving party an opportunity to address the late production. It would be unfair to allow the party which has failed to make discovery to shift to the innocent party the burden to file a motion to adjust the schedule. WDFA never sought leave of court, and instead produced 120,000 documents and a substantial interrogatory response after fact discovery was closed, leaving it to Techsavies to deal with the problems WDFA had created in violation of the rules and orders cited above.

Nevertheless, the sanctions Techsavies seeks are too broad. Granting them would be tantamount to giving Techsavies a directed verdict on many if not all of the damages issues in the case and Techsavies did contribute to these problems. For example, it admits that it was aware when it received WDFA's initial interrogatory and document responses in August of 2010, that it had not received adequate responses to its request for financial data. Motion at 3, lines 16-19. Yet these shortcomings were not brought to my attention until WDFA sought a protective order on Techsavies subpoena to MetroPCS in late October. Techsavies never moved to compel any discovery. Discovery disputes should be resolved soon after the problem appears, rather than by exclusionary and sanctions motions filed after discovery has terminated. Techsavies chose to file this motion for sanctions rather than take advantage of the discovery extension the Court offered. I therefore find that WDFA violated several of its discovery obligations. However, Techsavies' proposed sanctions go too far, especially in view of its conduct, and the sanctions ordered are more appropriate. IT IS THEREFORE ORDERED that Techsavies' motion is GRANTED IN PART AND DENIED IN PART as follows:

1. WDFA is barred from introducing, either in defense of plaintiff's claims or in support of its counterclaims, any document which it should have produced in response to plaintiff's first set of document requests and which was not produced until after plaintiff filed its second set of document requests. ***

2. WDFA's expert witnesses cannot rely on any document, or information contained in any document, that is precluded by this Order unless WDFA can show that the information on which the witness relied was provided timely to Techsavies in some other form of discovery.

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