Commercial Litigation and Arbitration

Affidavits Excluded for Failure to Identify Affiants in Initial or Supplemental Disclosures, Even Though Exclusion Is Tantamount to Dismissal — Factors for Exclusion and for Dismissal Sanctions

Carmody v. K.C. Bd. of Police Comm’rs, 2013 U.S. App. LEXIS 8128 (8th Cir. April 23, 2013):

Sergeant James Carmody, Officer Marcus Davis, and Officer Robert Vivona (officers) appeal the district court's1 orders (1) striking the officers' affidavits submitted in resisting summary judgment, and (2) granting summary judgment to the Kansas City Board of Police Commissioners (board) and Captain Mark Daniel Heimer (Heimer) (collectively, city) on the officers' Fair Labor Standards Act (FLSA), 29 U.S.C. § 203, et seq., claims against the city. Having jurisdiction under 28 U.S.C. § 1291, we affirm.***

Discovery closed on March 2, 2012. On March 30, 2012, the city moved for summary judgment, proposing, among other challenges, the officers could not, as a matter of law, satisfy their evidentiary burden. On April 30, 2012, the officers attempted to defeat summary judgment by attaching affidavits to their response. These affidavits contained precise estimations, week by week, of hours owed. The city moved to strike the affidavits. In companion orders, the district court struck the officers' affidavits and granted the city's motion for summary judgment, deciding the officers unjustifiably failed to comply with their discovery obligations and that, without the affidavits, the officers failed to satisfy their burden of production by showing "the amount and extent of their alleged overtime work."***

B. Striking of Affidavits

The officers contend the district court abused its discretion when it struck the affidavits. We disagree.

Federal Rule of Civil Procedure 26(a)(1)(A)(iii) requires parties to make initial disclosures, including a computation of damages, which under Rule 26(e)(1)(A) must be supplemented when new information comes to light. The district court has discretion under Rule 37(c)(1) to apply sanctions against a party who has failed to satisfy initial or supplemental disclosure requirements; for example, excluding the evidence or testimony entirely. That "discretion to fashion a remedy or sanction" is "wide," but "narrows as the severity of the sanction or remedy . . . increases." Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008).

The district court struck the affidavits because it found the officers "unjustifiably failed to comply" with Rule 26(e)(1)(A). In striking the affidavits, the district court applied a balancing test we previously found helpful to evaluate the admissibility of evidence a party did not properly disclose. See Citizens Bank of Batesville, Ark. v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir. 1994) (using the balancing test for admissibility of testimony from witnesses not listed before trial). Under this balancing test, the district court evaluated the importance of the evidence to the officers, the justifications for the officers' failure to comply, the prejudice to the city if the evidence were allowed to be used, and whether a continuance would effectively cure the prejudice. See id. The district court considered these affidavits important evidence supporting the officers' prima facie case, although the affidavits provided little explanation for the number of hours the officers claimed. As justification for the delay, the officers argued (1) the "relaxed" evidentiary standard from Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), discussed below, diminished their evidence production obligation; (2) the substantial volume of department documents produced late in discovery mitigated their fault; and (3) the city should have called this issue into question earlier in discovery. The district court weighed these arguments and concluded this factor "heavily" favored the city because the officers never moved for additional time to review these department documents and the burden of production was on the officers, not the city.

The district court considered the timing of this evidence extremely prejudicial to the city, because the city's entire litigation posture might have been different if these numbers had been offered earlier. The district court believed admitting these affidavits would also prolong the litigation and probably require reopening discovery and deposing every officer a second time. The district court concluded a continuance would not alleviate this prejudice to the city because prolonging the litigation would cause unnecessary burdens and expenses to the parties and tax judicial resources.

The district court went one step further by recognizing that striking the affidavits would be tantamount to dismissal. Citing Keefer v. Provident Life and Accident Insurance Company, 238 F.3d 937 (8th Cir. 2000), the district court considered lesser sanctions. Keefer dealt with Rule 37 sanctions for discovery violations and outlined guidelines to evaluate whether the severe sanction of dismissal was justified. Id. at 940-41 (explaining the "district court is not . . . constrained to impose the least onerous sanction available, but may exercise its discretion to choose the most appropriate sanction under the circumstances"). Applying Keefer, the district court determined "lesser sanctions would not adequately penalize the plaintiffs," or deter future litigants from refusing to comply with discovery requests. See id. Given this additional consideration of lesser sanctions by the district court, we find no abuse of discretion in striking the affidavits. See id.; Citizens Bank of Batesville, Ark., 16 F.3d at 966.

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