Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

MEMORANDUM^** 

Edward Stewart appeals from an adverse jury verdict in his section 1983 claim, arguing that the trial court abused its discretion in excluding evidence that defendant had failed to disclose a document in response to an interrogatory.

The district judge heard argument on appellee's motion for a protective order, considered the probative value, potential confusion and consumption of time inherent in admitting the evidence, and decided that the risk of prejudice outweighed the probative value of the evidence. The gist of the argument on appeal is that the probative value of the evidence was great because the case turned on the relative credibility of the plaintiff and defendant, and the district court therefore abused its discretion in excluding the evidence.

We are reminded that " [a]bsent some showing of extraordinary circumstances that would render the trial court's decision wholly arbitrary and capricious, a decision to exclude or admit evidence must be upheld." Waddell v. Commissioner, No. 87-7045, slip op. 2357, 2362 (9th Cir. Feb. 26, 1988); see also Diede v. Burlington N.R.R., 772 F.2d 593, 594 (9th Cir. 1985) (Rule 403). There is no such showing in this case. The district court was well within the permissible bounds of discretion in excluding this evidence.

Appellees seek attorney's fees pursuant to 42 U.S.C. § 1988 (1982). Under that statute, the court has discretion to award such fees to a prevailing defendant, including the government, where the plaintiff's claims are "groundless or without foundation." Hershinow v. Bonamarte, 772 F.2d 394, 395 (7th Cir. 1985) (quoting Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421 (1978)); see also Campbell v. Cook, 706 F.2d 1084, 1086-87 (10th Cir. 1983). We do not decide appellees' fee request at this time. If appellees still desire fees, they may file a separate fee application.

AFFIRMED.