Hitachi Medical Systems America, Inc. v. Branch et al, No. 5:2009cv01575 - Document 371 (N.D. Ohio 2011)
Court Description: Memorandum Opinion and Order: The court hereby amends a portion of its prior order (related document 295 ) regarding David Branch's sanction issued April 5, 2011 as as follows: Pursuant to Fed. R. Civ. P. 37(b)(2)(A)(ii), the Court proh ibits Defendant David Branch from initiating the introduction of, reference to, or reliance upon documents or information in the form of or derived from documents or information that he failed to produce during pre-trial discovery. To the extent Dav id Branch is questioned, by opposing counsel, about documents or information requested of him that he failed to produce, he may respond if under oath and on the witness stand. The modification of the Courts ruling permits the following to occur at t rial: if questioned, by opposing counsel, about documents or information not produced pretrial, David Branchs testimony, during a responsive examination by his own counsel (or pro se) will be limited to the narrow scope of the line of questioning put to him during the earlier examination by opposing counsel. With that limitation, however, he will be permitted to testify about the same documents and information presented to him during opposing counsels examination. The balance of the Court's order remains in place. Judge Benita Y. Pearson 8/11/2011. (R,Li)
Download PDF
<![CDATA[
Hitachi Medical Systems America, Inc. v. Branch et al Doc. 371 PEARSON, J. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION HITACHI MEDICAL SYSTEMS AMERICA, INC., Plaintiff, v. DANIEL BRANCH, et al., Defendants. ) ) ) ) ) ) ) ) ) ) CASE NO. 5:09CV01575 JUDGE BENITA Y. PEARSON MEMORANDUM OF OPINION AND ORDER (Regarding ECF No. 295) On April 5, 2011, the Court adopted Magistrate Judge George J. Limbert’s Report and Recommendation recommending that the Court sanction pro se Defendant David Branch for his continued failure to cooperate in discovery by “prohibiting Defendant from supporting or opposing all claims or defenses, and from introducing any evidence,” pursuant to Fed. R. Civ. P. 37(b)(2)(A)(ii).1 ECF Nos. 256 at 13; 295 at 11. At the final pretrial hearing held on July 13, 2011, it was brought to the Court’s attention that the parties interpreted the sanction “prohibiting Defendant from supporting or opposing all claims or defenses, and from introducing any evidence” as it relates to trial as essentially requiring David Branch to be subject to examination but to otherwise remain mute during the portions of the trial when evidence is presented. Accordingly, the Court hereby amends that portion of its prior Order regarding David Branch’s sanction issued on April 5, 2011(ECF No. 295) as follows: Pursuant to Fed. R. Civ. P. 37(b)(2)(A)(ii), the Court prohibits Defendant David Branch from initiating the introduction of, 1 Fed. R. Civ. P. 37(b)(2)(A)(ii) prohibits “the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Dockets.Justia.com (5:09CV01575) reference to, or reliance upon documents or information in the form of or derived from documents or information that he failed to produce during pre-trial discovery. To the extent David Branch is questioned, by opposing counsel, about documents or information requested of him that he failed to produce, he may respond if under oath and on the witness stand, as described below. During the final pretrial hearing, Plaintiff’s counsel attempted service of a subpoena requiring the physical presence of David Branch at trial, making it seem that Plaintiff’s counsel might be considering seeking evidence from David Branch at trial through testimony.2 Carried to its most extreme literal meaning, the Court’s earlier ruling would have caused David Branch’s responses to questions, posed by opposing counsel, about documents and information not produced during pre-trial discovery to place David Branch in jeopardy of once again violating an order of the Court, by, minimally, giving an answer that supports or opposes a claim or defense or introduces evidence. The modification of the Court’s ruling in ECF No. 295 permits the following to occur at trial: if questioned, by opposing counsel, about documents or information not produced pretrial, David Branch’s testimony, during a responsive examination by his own counsel (or pro se) will be limited to the narrow scope of the line of questioning put to him during the earlier examination by opposing counsel. With that limitation, however, he will be permitted to testify about the same documents and information presented to him during opposing counsel’s examination. The balance of the Court’s order, (ECF No. 295), remains in place. 2 “Testimony is evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” BLACK’S LAW DICTIONARY1514 (8th ed. 2004). -2- (5:09CV01575) IT IS SO ORDERED. August 11, 2011 Date /s/ Benita Y. Pearson Benita Y. Pearson United States District Judge -3-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
