The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
The Court has before it Defendant's Pre-Trial Motions in Limine (Dkt. 48), Defendant's Motion in Limine Regarding Undisclosed Witnesses (Dkt. 58), and Plaintiff's Motion in Limine Regarding Undisclosed Exhibits (Dkt. 68).
1.Motion In Limine Regarding Undisclosed Exhibits (Dkt. 68) Staley asks the Court to prohibit U.S. Bank (the "Bank") from introducing as exhibits at trial documents USB00013, USB00013A, USB00014 and USB001666. Staley contends that they were not timely disclosed in discovery.
As explained in this Court's orders addressing the earlier motions in limine, Federal Rule of Civil Procedure 37(c) states that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c). Rule 26(a), of course, deals with required disclosures, and Rule 26(e) deals with supplementing those disclosures.
Alternative sanctions to disallowing such evidence includes: (A) payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) informing the jury of the party's failure; and (C) imposing other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Fed. R. Civ. P. 37(c)(1)(A)-(C). The sanctions listed in Rule 37(b)(2)(A)(i)-(vi) include: "(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; [and] (vi) rendering a default judgment against the disobedient party." Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi).
Here, Staley explains that she made two relevant requests in her first set of discovery requests -- she asked for all policies and procedures regarding her employment, and she asked for all training materials regarding travel expenses. Casperson Aff., Ex. A, Dkt. 56-1. She later asked for an electronic copy of the computer program used by the Bank at the time of her termination for reporting travel-related expenses. Casperson Aff., Ex. A, Dkt. 69-1.
With regard to the first requests, the Bank produced a number of documents including two pages of a document called the "Travel Related Meals Policy & Reimbursement Procedures." They were produced on July 11, 2011. On January 14, 2013, three weeks before trial, the Bank produced a three-page document -- USB00013, USB00013A, USB00014 -- via email indicating that it intended to introduce it at trial. The Bank indicated that it was the "2009-06-01 Travel Related Meals Policy & Reimbursement Procedures." Documents USB00013 and USB00014 are apparently the same as, or similar to, the two pages previously produced. However, document USB00013A is a third page which was not produced until the January 14 email.
The Bank does no dispute that the third page is responsive to the discovery request. Instead, the Bank suggests that "[d]ue to an apparent clerical or compilation error during U.S. Bank's initial production of documents, the second page was not produced. Upon recognizing that the Travel Related Meals policy document that was previously produced did not include one of the pages, and for that sake of presenting a complete proposed exhibit, U.S. Bank produced page 2 as USB00013A." Def's Response, p. 2, Dkt. 76. The Bank therefore claims that its late disclosure was substantially justified.
As expressed in this Court's earlier order addressing similar motions in limine, the Court is deeply concerned about the Bank's discovery abuses in this case. If this were the Bank's only oversight, the Court would give the Bank the benefit of the doubt and deal with the late disclosure by simply giving Staley's counsel some leeway when addressing the exhibit at trial -- maybe allowing counsel to question a relevant witness outside the presence of the jury prior to that witness's testimony. However, the Court cannot give the Bank the benefit of the doubt here. The number of late disclosures, and the clear relevance and importance of much of the information produced in those late disclosures, troubles the Court. Staley's counsel did not have the opportunity to ask questions either in depositions or supplemental discovery requests about clearly relevant documents, including USB00013A, because of the late disclosures. Thus, the late disclosure was not harmless.
Accordingly, the Court will grant the motion in limine as to document USB00013A. The Court is not certain whether it will prohibit the Bank from introducing the bookends for that document -- documents USB00013 and USB00014. The Court is not altogether certain whether those are the same documents which were disclosed earlier, simply reproduced to make the exhibit whole, or if they are documents never before produced. Counsel ...