Rule 37 Sanctions — Optional Preclusion for Untimely Disclosure of Evidence — Offending Party May Not Offer It Initially, But Opponent May; If So, Offender May Then Use It, Too — Good Quote on Too Many Supposed Mistakes to Be Plausible

Bryntesen v. Camp Automotive, Inc., 2015 U.S. Dist. LEXIS 7371 (D. Ida. Jan. 20, 2015):

2. Sanctions

Defendants ask the Court to sanction Plaintiffs for late disclosure of three videos -- two videos of the arrest incident made by bystanders, and one video of Casey Bryntesen calling Scott Grumbly of Camp BMW made by an individual unknown to Defendants. Both parties accurately recite the decision tree often used by this Court to determine whether Rule 37 sanctions are appropriate for Rule 26 disclosure failures. Rules 26 and 37 contemplate a five-step decision tree for resolving whether [*6]  exhibits were timely disclosed: (1) Was the exhibit identified in the Rule 26(f) initial disclosures? (2) If not, was the exhibit identified in a supplemental disclosure pursuant to Rule 26(e)? (3) If not, has the exhibit otherwise been made known to the other parties during the discovery process or in writing thereby excusing the failure to supplement under Rule 26(e)? (4) If not, has the disclosing party shown that its failure was substantially justified to avoid Rule 37 sanctions? (5) If not, has the disclosing party shown that its failure was harmless to avoid Rule 37 sanctions?

Here, Plaintiffs acknowledge that the three videos were not identified in their initial disclosures. Nor were they specifically identified in a Rule 26(e) supplement. They were subsequently made known to Defendants, and are obviously known to Defendants now, but the circumstances of that disclosure are concerning.

Counsel for Plaintiffs suggest they mistakenly believed the videos were disclosed with other digital images in their initial disclosures. Mistakes like this surely happen. However, when served with subsequent discovery requests for photographs and videos of the incident, Plaintiffs again failed to produce the videos. Then, defense counsel wrote a letter [*7]  to Plaintiffs' counsel stating that "[a]t some point in time, I seem to recall hearing that part of this incident had been recorded on a video. Please confirm that the three color photographs produced are those taken by Michael Wickham, and produce any and all other photographs or motion picture/videos as a supplement to Plaintiffs' responses to Request for Production No. 9." Jackson Decl., Ex. 4, Dkt. 65-1. Plaintiffs' counsel did not respond. Instead they now contend that the letter's reference to the video "escaped the notice of Plaintiffs' counsel" because they were focused on other discovery and believed the videos had been produced. Schmidt Decl., ¶ 6, Dkt. 78.

Plaintiffs only produced the videos after Sheree Bryntesen acknowledged their existence during her deposition. And only after disclosing the videos of the incident, did Plaintiffs' counsel "investigate whether any other media files had also been inadvertently omitted from previous disclosure and discovery responses." Plf. Br., at p. 5, Dkt. 76. "It was then that Plaintiffs' counsel discovered that the video of the telephone conversation between Casey Bryntesen and Scott Grumbly had not yet been disclosed or produced." Id.

Mistakes and oversights [*8]  happen, but the number of mistakes and oversights here are troubling. Especially where the disclosure was not ultimately made until after the vast majority of the depositions occurred -- depriving defense counsel of the opportunity to ask most witnesses, particularly the officers involved in the arrest, about the videos. Plaintiffs failed to timely disclose the videos as required by Rule 26(a) and (e). And, under these circumstances, the Court finds that the late disclosure was not substantially justified or harmless -- as is necessary to avoid Rule 37 sanctions. Repeated oversights are not substantial justification, and defense counsel's inability to question witnesses about the videos during their depositions is surely not harmless.

Rule 37(c) states that "[i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court on motion or after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform [*9]  the jury of the party's failure; and (C) may impose other appropriate sanctions including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)." Fed.R.Civ.P. 37.

Here, the proper sanction is to preclude Plaintiffs from using the videos on a motion, at a hearing, or at trial. Defendants may still use the videos. However, if they do so, the Court will then allow Plaintiffs to use them as well -- Defendants can make that choice. Additionally, the Court will order Plaintiffs to pay Defendants' fees and costs for bringing the motion for sanctions. But Defendants' request that the Court also sanction Plaintiffs by precluding them from using certain depositions and informing the jury of the late disclosure is excessive and unwarranted.

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