Obesity Research Institute, LLC v. Fiber Research International, LLC et al, No. 3:2015cv00595 - Document 205 (S.D. Cal. 2016)
Court Description: ORDER granting in part and denying in part 171 Defendant's Motion to Strike Plaintiff's First Supplemental Initial Disclosures as presented in the instant Joint Motion. As provided herein, Plaintiff is precluded, absent further order from the Court, from using Brian Salerno, other than as a non-retained expert witness, Wendy Wang, Ron Ovadia, Steven Snyder, Gayle Bensussen, Certain 30(b)(6) Witnesses, Patience Hannah, Angela Emmerson, Bradley Sutton, or Jamie Stein to supply evidence on a motion, at a hearing, or at a trial in this case.Signed by Magistrate Judge Mitchell D. Dembin on 4/8/16. (Dembin, Mitchell)
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Obesity Research Institute, LLC v. Fiber Research International, LLC et al Doc. 205 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No. 15-cv-0595-BAS-MDD OBESITY RESEARCH INSTITUTE, LLC, Plaintiff, 13 14 15 16 v. FIBER RESEARCH INTERNATIONAL, LLC, Defendant. ORDER GRANTING IN PART DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S FIRST SUPPLEMENTAL INITIAL DISCLOSURES [ECF NO. 171] 17 18 Before the Court is Defendant’s motion to strike Plaintiff’s first 19 amended supplemental disclosures, presented in a joint motion as required 20 by this Court’s chambers rules, filed on March 22, 2016. (ECF No. 171). 21 Plaintiff served its amended supplemental disclosures upon Defendant as an 22 attachment to an electronic mail at 7:07 pm on February 29, 2016, the day 23 general discovery closed in this case. See Exh. 1, Declaration of Jack 24 Fitzgerald (ECF No. 171-2). The supplemental disclosures added 14 25 witnesses and 18 categories of documents to Plaintiff’s initial disclosures 26 under Fed. R. Civ. P. 26(a)(1)(A). Defendant moves to strike the amended 1 15-cv-0595-BAS-MDD Dockets.Justia.com 1 disclosures as untimely and unjustified. Plaintiff asserts that the amended 2 disclosures are timely and justified. 3 4 LEGAL STANDARD Rule 26 of the Federal Rules of Civil Procedure governs initial 5 disclosures and supplementing the disclosures. Regarding initial disclosures, 6 Rule 26 provides, in pertinent part, that 7 8 9 10 11 12 “a party must, without awaiting a discovery request, provide to the other parties: (i) the name [and contact information if known] of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses . . . ; [and] (ii) … a description by category and location . . . of all documents . . . that the disclosing party has in its possession, custody or subject to its control and may use to support its claims and defenses . . . .” 13 Rule 26(a)(1)(A)(i),(ii). Regarding supplementing these initial disclosures, 14 Rule 26 provides, in pertinent part, that 15 16 17 18 19 20 “[a] party . . . must supplement or correct its disclosure . . . in a timely manner if the party learns that in some material respect the disclosure . . . is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Rule 26(e)(1)(A). The Advisory Committee’s note to the 1993 amendment to Rule 26(a)(1) 21 states that the disclosure requirements should “be applied with common 22 sense in light of the principles of Rule 1, keeping in mind the salutary 23 purposes that the rule is intended to accomplish. The litigants should not 24 indulge in gamesmanship with the respect to the disclosure obligations.” 25 “Counsel who make the mistake of treating Rule 26(a)(1) disclosures as a 26 technical formality, rather than as an efficient start to relevant discovery, do 2 15-cv-0595-BAS-MDD 1 their clients no service and necessarily risk the imposition of sanctions.” 2 Poitra v. School District No. 1, 311 F.R.D. 659, 664 (D. Colo. 2015). 3 ANALYSIS Gamesmanship appears the order of the day in this litigation. Fed. R. 4 5 Civ. P. 1 provides that the Federal Rules of Civil Procedure “should be 6 construed, administered, and employed by the court and the parties to 7 secure the just, speedy, and inexpensive determination of every action and 8 proceeding.” (emphasis added). This case is straightforward. Either the 9 konjac-based products of the parties is substantially the same, in which case 10 Plaintiff likely prevails, or it is not, in which case Defendant likely prevails 11 on its counterclaims. Nevertheless, the docket now includes roughly 14 12 discovery-related disputes. The Court is of the firm impression that the 13 cooperation envisioned by the recent amendments to the Federal Rules of 14 Civil Procedure is woefully lacking in this case. 15 16 I. Timeliness Plaintiff takes the position that the amended disclosures are 17 presumptively timely because they were served prior to the close of discovery 18 even if only by a matter of hours. See Joint Brief at 6-7 (ECF No. 171 *7-8). 19 Plaintiff argues that inasmuch as there was no deadline in the Scheduling 20 Order in this case for supplementation of initial disclosures, the date closing 21 discovery is the de facto deadline to supplement initial disclosures, not “well- 22 before” the deadline which, according to Plaintiff, would be unworkable. Id. 23 at 6 (ECF No. 171 *7). 24 Plaintiff is half-right. Amended disclosures served after the close of 25 discovery are presumptively untimely. See Ashman v. Selectron, Inc., 2010 26 WL 3069314 *4, No. CV 08-143 JF (N.D. Cal. Aug. 4, 2010). But this does not 3 15-cv-0595-BAS-MDD 1 mean that the contrary is true and that amended disclosures served just 2 hours before the close of discovery presumptively are timely. 3 The answer, at least with regard to witnesses, is provided in Rule 4 26(a)(1)(A) which requires that disclosures must be made of “individual[s] 5 likely to have discoverable information.” This phrase alone suggests 6 that disclosures of witnesses must be made sufficiently in advance of the 7 close of discovery for the party-opponent to have a reasonable opportunity to 8 pursue discovery of these witnesses. See Reed v. Washington Area Transit 9 Authority, 2014 WL 2967920 *2, No. 1:14cv65 (E.D. Va. July 1, 10 2014)(“Making a supplemental disclosure of a known fact witness a mere two 11 days before the close of discovery, as is the case here, is not timely by any 12 definition.”). The Court finds the amended disclosures untimely. The Court 13 will address the impact of this finding below. 14 II. Witness Disclosures 15 Having determined the supplemental disclosures of witnesses untimely, 16 the inquiry turns first to whether the functional equivalent of the information 17 required under Rule 26(a)(1)(A) otherwise was made known to Defendant 18 under Rule 26(e)(1)(A) such that supplementation was not required. If 19 supplementation was required and the supplementing party failed to comply 20 with Rule 26(a) or (e), Rule 37(c)(1) requires the Court to consider sanctions 21 “unless the failure was substantially justified or harmless.” The party facing 22 sanctions has the burden of establishing that its omission was justified or 23 harmless. Reed v. Washington Area Transit Authority, 2014 WL 2967920 *2. 24 Regarding whether supplementation was required, the Court must 25 determine whether the information otherwise made known during the 26 discovery process is the functional equivalent of the information required 4 15-cv-0595-BAS-MDD 1 2 under Rule 26(a)(1)(A). Poitra v. School District No. 1, 311 F.R.D. at 666. There are four factors the Court must consider in determining whether 3 a violation of a discovery deadline is justified or harmless: (1) prejudice or 4 surprise to the party against whom the evidence is offered; (2) the ability of 5 that party to cure the prejudice; (3) the likelihood of disruption of the trial; 6 and (4) bad faith or willfulness involved in not timely disclosing the evidence. 7 See Lanard Toys v. Novelty, Inc., 375 Fed. Appx. 705, 713 (9th Cir. 2010). 8 9 The only way to determine whether supplementation was required and, if so, whether the failure to do so was substantially justified or harmless 10 regarding the 14 witnesses identified in the amended disclosure, is to review 11 the circumstances of each witness. In that regard, the parties have been less 12 than helpful. Neither party considered that it may be useful to present a list 13 of the supplemental witnesses juxtaposed with whether they previously were 14 disclosed or were deposed. Instead, the Court has been required to parse the 15 joint motion to create its own list as follows: 16 1. Ryusuke Shimizu 17 Although not previously disclosed, two other principals of Shimizu 18 Chemical Corporation were disclosed initially by Plaintiff. In this case, 19 Defendant is pursuing rights purportedly assigned to it by Shimizu Chemical 20 Corporation. Defendant surely knows how to contact Mr. Shimizu and learn 21 what he may say regarding the claims and defenses in this case. Defendant 22 is aware that Plaintiff served a subpoena upon Mr. Shimizu and attempted to 23 compel his appearance at deposition. (ECF No. 147). This disclosure, if 24 supplementation was required, is harmless. 25 2. John Alkire 26 Mr. Alkire is the owner of Defendant and was disclosed by Defendant in 5 15-cv-0595-BAS-MDD 1 its initial disclosures. Defendant certainly has access to Mr. Alkire and 2 knows the information he may have regarding the claims and defenses in this 3 case. If supplementation was required by Plaintiff, the failure to do so timely 4 is harmless. 5 3. Harry Preuss 6 Mr. Preuss, an author of a study used by both parties in this case, was 7 identified by Defendant in its initial disclosures, was deposed by Plaintiff and 8 represented by counsel for Defendant in his deposition. Defendant has the 9 functional equivalent of the information required under Rule 26(a)(1)(A) such 10 that supplementation was not required. 11 4. Brian Salerno 12 Mr. Salerno was disclosed by Plaintiff as a non-retained expert in this 13 case and has been deposed, apparently in that context. Plaintiff 14 unsuccessfully requested that this Court deem Mr. Salerno a functional 15 employee of Plaintiff and his company, Nutralliance, Inc., engaged in 16 common cause with Plaintiff. (See ECF No. 151). In its supplemental 17 disclosures, Plaintiff now identifies Mr. Salerno as a fact witness. The Court 18 finds this supplementation untimely and prejudicial. Plaintiff must have 19 known, considering the relationship, that Mr. Salerno had more to offer than 20 his expert opinion. He should have been disclosed timely and, applying the 21 Lanard Toys factors, the failure is not substantially justified or harmless. 22 The failure to disclose an individual as a fact witness, even if disclosed for 23 another purpose, is not harmless. Reed v. Washington Area Transit 24 Authority, 2014 WL 2967920 *3-4. 25 5. Wendy Wang 26 Ms. Wang is the proprietor of Advanced Botanical Consulting & 6 15-cv-0595-BAS-MDD 1 Testing, Inc. Defendant’s motion to compel production of documents from 2 Ms. Wang’s company recently was the subject of an order of this Court. (ECF 3 No. 200). Ms. Wang’s company was hired by Plaintiff’s agents to perform 4 certain lab testing in connection with this litigation. (ECF No. 151). Ms. 5 Wang, it appears, has not been deposed. Having employed Ms. Wang and her 6 company in connection with this litigation, Plaintiff was in a position to 7 disclose Ms. Wang long before the discovery deadline. Applying the Lanard 8 Toys factors, its failure to do so is not substantially justified or harmless. 9 10 6. Ron Ovadia Mr. Ovadia apparently is associated with a company called West Coast 11 Laboratories, Inc. He has not previously been the subject of disclosures nor 12 been deposed. According to Plaintiff, he was identified in an interrogatory 13 response by Plaintiff. Plaintiff has not asserted that the interrogatory 14 response provided the functional equivalent of the information required 15 under Rule 26(a)(1)(A). The supplementation was untimely and, considering 16 the Lanard Toys factors, is not substantially justified or harmless. Moreover, 17 the disclosure of the subject of his information is too general to provide any 18 value. 19 7. Steven Snyder 20 Mr. Snyder is identified as with 21st Century Healthcare, Inc. He is 21 similarly situated to Mr. Ovadia and will be considered as such. 22 8. Tim Peters 23 Mr. Peters, of Medallion Labs, previously was disclosed by Defendant. 24 Consequently, Defendant must know what information Mr. Peters may have 25 in connection with the claims and defenses in this case. The Court finds the 26 tardy disclosure of Mr. Peters harmless. 7 15-cv-0595-BAS-MDD 1 9. Gayle Bensussen 2 Ms. Bensussen is identified as working for Vit-Best/Vita Tech. She was 3 not previously disclosed nor deposed. All that Plaintiff provides in this regard 4 is that Defendant subpoenaed information from Vit-Best/Vita Tech. And, the 5 disclosure was too general to provide any notice of value. There appears no 6 reason that she was not disclosed timely. The failure to do so, considering 7 the Lanard Toys factors, is not substantially justified or harmless. 8 10. 9 This company, the name of which apparently is protected under the Certain 30(b)(6) Witnesses 10 protective order extant in this case, was identified during the deposition of 11 Mr. Salerno, according to Plaintiff. Considering the relationship of Mr. 12 Salerno to Plaintiff, this disclosure was not timely and, considering the 13 Lanard Toys factors, there appears no substantial justification and is not 14 harmless. 15 11-13. Patience Hannah, Angela Emmerson, Bradley Sutton 16 Plaintiff offers no justification for not previously disclosing these 17 witnesses. And, the information provided regarding the subject of their 18 information is too general to be of any value. These disclosures should have 19 been made earlier and, considering the Lanard Toys factors, are not 20 substantially justified or harmless. 21 14. Jamie Stein 22 Ms. Stein is the CFO of Continuity Products, LLC, which serves as the 23 management company for Plaintiff. (ECF No. 151). Plaintiff had to have 24 known whether Ms. Stein had discoverable information prior to February 29, 25 2016. The disclosure was not timely and, considering the Lanard Toys 26 factors, is not substantially justified or harmless. 8 15-cv-0595-BAS-MDD 1 III. Document Disclosures 2 In addition to disclosing 14 witnesses in its amended supplemental 3 disclosure, Plaintiff disclosed 18 new categories of documents under Rule 4 26(a)(1)(A)(ii). Neither party addressed these disclosures, other than 5 summarily, in the joint motion. The Court finds that, although untimely, 6 these disclosures are harmless. 7 IV. Consequences 8 Plaintiff argues that there should be no consequence to its tardy 9 witness disclosures because of the Court’s Order dated February 25, 2016, 10 permitting a First Amended Complaint to be filed adding Shimizu Chemical 11 Corporation as a defendant. (ECF No. 122). According to Plaintiff, this 12 means that discovery will be extended and, by implication, that any harm 13 from the tardy disclosures will be dissipated. Plaintiff has moved the Court 14 to amend the scheduling order on that basis. (ECF No. 185). That motion is 15 not yet fully briefed and the Court will address it in due course. As matters 16 now stand, however, Shimizu Chemical Corporation has not entered an 17 appearance in this case. If and when Shimizu Chemical Corporation enters 18 the case, the Court will consider the extent to which discovery will reopen. It 19 may or may not render the current dispute moot. 20 Having found that the disclosures of certain witnesses was not timely 21 and not harmless, the Court is required to consider sanctions. Rule 37(c)(1) 22 provides that the consequence of a party’s failure to comply with the 23 provisions of Rule 26(a) or (e) is that “the party is not allowed to use that . . . 24 witness to supply evidence on a motion, at a hearing, or at a trial.” Rule 25 37(c)(1) authorizes the court to consider additional or different sanctions. See 26 Rule 37(c)(1)(A)-(C). The Court finds this sanction sufficient and justified in 9 15-cv-0595-BAS-MDD 1 this case at this time. 2 CONCLUSION 3 Defendant’s motion to strike Plaintiff’s first supplemental amended 4 disclosures, as presented in this joint motion, is GRANTED IN PART AND 5 DENIED IN PART. 6 Plaintiff is precluded, absent further order from the Court, from using 7 Brian Salerno, other than as a non-retained expert witness, Wendy Wang, 8 Ron Ovadia, Steven Snyder, Gayle Bensussen, Certain 30(b)(6) Witnesses, 9 Patience Hannah, Angela Emmerson, Bradley Sutton, or Jamie Stein to 10 11 12 supply evidence on a motion, at a hearing, or at a trial in this case. IT IS SO ORDERED. Dated: April 8, 2016 13 14 15 16 17 18 19 20 21 22 23 24 25 26 10 15-cv-0595-BAS-MDD
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