Commercial Litigation and Arbitration

Rule 37(c)(1) — Factors for Determining Whether a Failure to Disclose or Make Discovery Is Harmless

Battle vs. O'Shaughnessy, 2012 U.S. Dist. LEXIS 143471 (N.D. Ill. Oct. 4, 2012):

"Under Rule 37(c)(1) exclusion of non-disclosed evidence is automatic and mandatory ... unless non-disclosure was justified or harmless." Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012) (internal quotations marks omitted). The Seventh Circuit has identified factors in determining whether non-compliance with Rule 26 is harmless: "(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date." Id.

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