Commercial Litigation and Arbitration

Fact That Document Is Publicly Available Does Not Justify Failure to Disclose It under Rule 26(a)(1) to Provide Notice to Adversary — Failure to Disclose Leads to Preclusion under Rule 37(c)

Martino v. Kiewit New Mexico, 2015 U.S. App. LEXIS 1457 (5th Cir. Jan. 29, 2015):

I. Background

This dispute arose out of a construction worksite accident in which Gomez, one of Kiewit's employees, ran over Martino with a "skid steer," a machine Gomez was using to excavate dirt. The construction occurred pursuant to a contract involving the United States Army Corp of Engineers ("USACE"), which [*2]  retained Kiewit to build a portion of the fence on the United States-Mexico border. Separately, subcontractors-including Zia, Martino's employer-handled archaeological and environmental monitoring for USACE. On the date of the accident, Gomez ran over Martino's foot while he was walking along the top of a levee on which Gomez was excavating dirt.

Martino sued multiple parties, claiming negligence, negligence per se resulting from violation of Occupational Safety and Health Administration ("OSHA") regulations, gross negligence, and negligent hiring, training, and supervision of Gomez. The district court struck from evidence a contract between Kiewit and USACE ("USACE Contract") because Martino failed to disclose the contract under Federal Rule of Civil Procedure 26(a)(1)(A). The district court eventually dismissed all defendants except Kiewit and Gomez and granted Kiewit's motion for summary judgment, dismissing all but Martino's negligence claim. The court concluded that Martino had provided insufficient evidence to support his negligent hiring, training, and supervision claims, and that Fifth Circuit precedent precluded a negligence per se cause of action based on OSHA violations. The district court also denied Martino's application [*3]  for more time to designate experts and furnish expert reports because Martino failed repeatedly to meet deadlines in the court's scheduling orders.


A. Exclusion of the USACE Contract

After an extension to accommodate Martino, the district court set October 1, 2012 as the discovery deadline. On that date, Kiewit filed its motion for summary judgment. Martino responded on October 30, 2012 and attached the USACE Contract. On Kiewit's motion, the district court struck the USACE [*5]  Contract as a Rule 37(c) sanction "because Plaintiff wholly failed to comply with the discovery timelines in this cause and never produced the contract previous to this point" as required by Rule 26. See FED. R. CIV. P. 26(a)(1)(A)(ii). Martino argues that the district court abused its discretion in striking the USACE Contract because neither Rule 26 nor the scheduling order required production of the contract.

Rule 26(a)(1)(A)(ii) mandates that a party initially disclose "all documents . . . that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment . . . ." Id. Rule 37(c) states that upon failure to do so, a "party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37(c). In determining whether a district court abused its discretion in excluding evidence under Rule 37(c), we consider four factors: "(1) [Martino's] explanation for [his] failure to disclose the evidence, (2) the importance of the evidence, (3) the potential prejudice to [Kiewit] in allowing the evidence, and (4) the availability of a continuance." CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d at 279-80. Under this four-pronged test (the "CQ Test"), [*6]  the district court did not abuse its discretion.

Martino's failure to disclose the USACE Contract under Rule 26 followed a sequence of discovery violations. Martino attempts to justify his nondisclosure by claiming the USACE Contract was a public document, equally available to both parties. However, even if a document is publicly available or in the opposing party's possession, a party must still disclose it under Rule 26(a)(1)(A) to provide notice of evidence central to its claims or defenses. Considering the purpose of Rule 26(a)(1)(A) and its direct link to exclusionary sanctions in Rule 37(c), Martino lacks a substantial justification for failing to produce the documents and therefore lacks a compelling explanation under the first prong of the CQ Test. We also conclude that the district court correctly determined that none of the other prongs of the CQ Test resolve in Martino's favor. Applying that test, the district court did not abuse its discretion in excluding the USACE Contract pursuant to Rule 37(c). See id. at 279-80.

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