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holding that in the absence of a duty to disclose under Rule 26, there was no duty to supplement under 26(e)
Summary of this case from HNOT v. WILLIS GROUP HOLDINGS LTDOpinion
99 Civ. 12385 (LAK).
January 11, 2002
ORDER
In his memorandum of law in opposition to defendants' motion for summary judgment, plaintiff requests that this Court preclude defendants from relying on the "Cree Letter" because National Geographic ("NGS") produced this document approximately six weeks after the close of discovery.
Reply Appendix of Exhibits and Deposition Testimony in Further Support of Defendant's Motion for Summary Judgment Exhibit J-11.
Plaintiff requests preclusion of this highly relevant evidence pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure, which provides that "a party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence . . . on a motion any . . . information not so disclosed." The request is denied because plaintiff has failed to establish that the self-executing sanction of Rule 37(c)(1) is properly applicable to NGS's failure to produce the Cree letter before the close of discovery and because even if Rule 37(c)(1) were applicable, there is no indication that the failure demonstrates "flagrant bad faith and callous disregard of the rules."
Johnson Elec. N. Am. v. Mabuchi Motor Am. Corp., 77 F. Supp.2d 446, 458 (S.D.N Y 1999).
As a threshold matter, the self-executing sanction of Rule 37(c)(1) applies only when a party fails to (1) make a disclosure required by Rule 26(a), (2) make a disclosure required by Rule 26(e)(1), or (3) amend a prior response to discovery as required by Rule 26(e)(2). The party seeking to invoke the preclusion sanction has the burden of establishing that the opposing party's conduct violated one of these rules. Plaintiff relies on the following alleged facts: (a) Ward demanded production of this document, among others, by his document demand dated May 23, 2000; (b) NGS agreed to produce documents in its document response in June 2000; (c) NGS denied "knowledge or information of the existence of written agreements concerning photographs created for . . . `Cree Indians'" in its September 2000 answer; (d) NGS represented to the Court by letter dated January 10, 2001 that it "w[ould] produce all non-financial documents" by the January 12, 2001 deadline imposed by Magistrate Judge Pitman; (e) NGS did not produce the Cree Letter by the January 12 deadline or by the close of discovery on January 31, 2001; and (f) the Court declined to extend the discovery cutoff date, at least in part due to NGS's letter of January 10, 2001.
The exclusion of withheld evidence under Rule 37(c)(1) is "self-executing" because the sanction is triggered "without need for a motion under subdivision (a)(2)(A)." FED. R. CIV. P. 37 advisory committee's notes (1993 amendments).
See 7 MOORE'S FEDERAL PRACTICE § 37.60[2][a], at 37-117 (3d ed. 2000).
Appendix of Exhibits and Deposition Testimony in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Opp. App.") Exhibit 27.
Pl.'s Opp. App. Ex. 28.
Pl.'s Opp. App. Ex. 29.
Pl.'s Opp. App. Ex. 30.
Pl.'s Opp. App. Ex. 31.
Defendants' failure to disclose the Cree Letter before the close of discovery did not violate a disclosure obligation under Rule 26(a). Before December 1, 2000, when the Rule 26(a) was amended to "remove the authority [of individual courts] to alter or opt out of the national disclosure requirements by local rule," Rule 26(a)(1) did not apply to actions in this district. Thus, when Ward commenced the action in late 1999, NGS did not have an obligation to make initial disclosures under Rule 26(a)(1). Initial disclosure requirements were not triggered after December 1, 2000 because there was no Rule 26(f) conference at that advanced stage of the litigation. Nor did the failure to produce the Cree Letter violate pretrial disclosure obligations under Rule 26(a)(3) because those disclosures are not due until thirty days before trial, and the Court has not set a trial date yet.
FED. R. CIV. P. 26 advisory committee's notes (2000 amendments).
S.D.N.Y. LOC. R. 26.4 (repealed effective Dec. 1, 2000) ("Federal Rules of Civil Procedure 26(a)(1) and 26(d) . . . are not operative in this District.").
See FED. R. CIV. P. 26(a)(1) ("These disclosures must be made at or within 14 days after the Rule 26(f) conference unless a different time is set by stipulation or court order . . . ."); FED. R. CIV. P. 26(f) ("Except . . . when otherwise ordered, the parties must as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to [inter alia] develop a proposed discovery plan . . . .").
Rule 26(a)(2) is not implicated here because it deals with disclosure of expert testimony.
Finally, NGS's failure to produce the Cree Letter before the close of discovery did not violate the obligations to supplement found in Rule 26(e). As for subsection (e)(1), it had no duty to supplement its disclosures under subdivision (a) because, as discussed immediately above, it had no duty to make Rule 26(a)(1) initial disclosures in the circumstances. As for subsection (e)(2), Ward makes no showing that NGS did not "seasonably" bring the existence of the Cree Letter to his attention after its discovery. On the contrary, it appears to have brought the Cree Letter to Ward's attention soon after its discovery on March 9, 2001.
Lutov Reply Decl. ¶ 4; see also Plaintiff's Memorandum of Law in Opposition to Motion by Defendants for Summary Judgment and to Dismiss, at 15-16 (indicating that NGS produced the Cree Letter "approximately 6 weeks" after the close of discovery on January 31, 2001, placing the date of production around mid-March).
In short, plaintiff has failed to show that Rule 37(c)(1) even applies to NGS's conduct. Instead, plaintiff merely demonstrates that NGS failed to comply in a timely manner with a request for production of documents under Rule 34. Plaintiff never made a motion under Rule 37(a)(2)(B) to obtain an order to compel discovery and thus cannot now obtain sanctions under Rule 37(b)(2).
See Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994) ("The rule's plain language limits its applicability to situations where a court order has been violated. Moreover, the caselaw reveals that Rule 37(b)(2) has been invoked only against parties who have disobeyed a discovery ruling of some sort." (footnote omitted)); Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir. 1991) ("Provided that there is a clearly articulated order of the court requiring specified discovery, the district court has the authority to impose Rule 37(b) sanctions for noncompliance with that order." (citing Jones v. Uris Sales Corp., 373 F.2d 644, 647-48 (2d Cir. 1967))); 7 MOORE'S FEDERAL PRACTICE., supra, § 37.42[1], at 37-61 to -62.
Furthermore, even if plaintiff could show that NGS's failure to produce the Cree Letter in a timely fashion violated Rule 26(a), 26(e)(1), or 26(e)(2), preclusion would be improper under Rule 37(c)(1). Although the Advisory Committee Notes dub the preclusion sanction of Rule 37(c)(1) "self-executing," courts in this circuit have recognized that "the imposition of sanctions under Rule 37(c)(1) is a matter within the trial court's discretion." Moreover, because "refusing to admit evidence that was not disclosed in discovery is a drastic remedy," courts will resort to preclusion only "in those rare cases where a party's conduct represents flagrant bad faith and callous disregard of the Federal Rules of Civil Procedure." Plaintiff has made no showing of bad faith or deliberate concealment by NGS. Furthermore, plaintiff has given the Court no real reason to second-guess the explanation for the tardy production of the Cree Letter that was provided by Andrea Lutov, a records manager in the library of NGS. Thus, because NGS's conduct does not demonstrate bad faith or flagrant disregard of the rules, preclusion under Rule 37(c)(1) would not be proper even if plaintiff had shown that Rule 37(c)(1) applies to NGS's conduct.
FED. R. CIV. P. 37 advisory committee's notes (1993 amendments).
Johnson Elec. N. Am. v. Mabuchi Motor Am. Corp., 77 F. Supp.2d 446, 458 (S.D.N Y 1999).
Grdinich v. Bradlees, 187 F.R.D. 77, 79 (S.D.N.Y. 1999) (italics in original) (quoting Hinton v. Patnaude , 162 F.R.D. 435, 439 (N.D.N.Y. 1995)); accord Ventra v. United States, 121 F. Supp.2d 326, 332 (S.D.N.Y. 2000); Johnson Elec., 77 F. Supp.2d at 458.
See Lutov Reply Decl. passim.
For the foregoing reasons, the Court will not preclude defendants from using the Cree Letter, either on its motion for summary judgment or in later proceedings before this Court. This of course is not to condone any carelessness that may have resulted in the inappropriate delay in producing the document.
SO ORDERED.