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Garth O. Green Enterprises, Inc. v. Harward

United States District Court, D. Utah

January 29, 2018

GARTH O. GREEN ENTERPRISES, INC. et al., Plaintiffs & Counterclaim Defendants,
v.
RANDALL HARWARD, et al., Defendants & Counterclaim Plaintiffs.

          Robert J. Shelby District Judge.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION IN LIMINE AND FOR DISCOVERY SANCTIONS (ECF NO. 461)

          Evelyn J. Furse United States Magistrate Judge.

         Counterclaim Defendants Garth O. Green Enterprises, Inc., Garth O. Green, and Michael Green, (the “Greens”), bring their Motion in Limine and for Sanctions Regarding Standard's Deficient Discovery Responses Re: Damages. (Mot. in Limine & for Sanctions Re: Standard's Deficient Disc. Resps. Re: Damages (“Mot.”), ECF No. 461.) Specifically, the Greens contend Counterclaim Plaintiff Standard Plumbing Supply Co., Inc., (“Standard”), failed to provide a computation of damages as required by Federal Rule of Civil Procedure 26 and failed to produce documents related to its damages. (Mot. 3, ECF No. 461.) The Greens ask this Court to terminate Standard's claims for damages or exclude any evidence to support its damage claims. (Id. at 1.) In either event, the Greens seek their attorney's fees spent on discovery in the case. (Id.) As evidence of the harm suffered, the Greens argue they had to serve certain Rule 33 interrogatories and Rule 34 document requests aimed at discovering Standard's damages, which Standard should have disclosed under Rule 26(a)(1), and Standard failed to reply fully to them. (Id. at 4-6, 33-44.) The Greens further contend they attempted to take Standard's Rule 30(b)(6) deposition to discover the alleged damages, but Standard failed to prepare its witness for deposition on the issue of damages. (Id. at 7-14.) Additionally the Greens assert Standard improperly instructed its management team not to answer damages questions in their depositions that the Greens noticed in an attempt to determine the damages alleged. (Id. at 14-19.) Having considered the briefing on the motion, the Court[1] finds Standard failed to make its required 26(a)(1)

         disclosures, causing harm to the Greens. The Court GRANTS the Motion in part and DENIES the Motion in part.[2] Specifically, the Court compels further disclosure to comply with Rule 26, grants further deposition of Standard's 30(b)(6) witness and a few members of the management team at Standard's expense, and awards $5, 000 to the Greens to compensate them for the harm caused by Standard's failure to disclose.

         DISCUSSION

         I. Timeliness

         Standard asks this Court to deny the Greens' Motion as untimely. (Standard Plumbing Supply Co. Inc.'s Mem. in Opp'n to Defs.' Mot. in Limine & for Sanctions Re: Standard's Deficient Disc. Resps. Re: Damages (“Opp'n”) 1, ECF No. 480.) The Court ordered the parties to meet and confer by April 28, 2017 on any discovery issues regarding disclosures, document requests, interrogatories, requests for admission, and deposition occurring before March 31, 2017. (ECF No. 324; Apr. 6, 2017 H'rg Tr. 128-130, ECF No. 461-6.) At the hearing, the Court clarified that if the parties did not intend to contest the completeness of the discovery but rather file a summary judgment based on insufficient evidence or seek a motion in limine for failure to disclose, they did not need to meet and confer on those issues. (Apr. 6, 2017 H'rg Tr. 128-130, ECF No. 461-6.) At a subsequent hearing, the Court explicitly stated that it did not include a deadline for filing the proposed motion in limine on damages because it “wanted to leave that open.” (June 28, 2017 Hr'g Tr. 17, ECF No. 463.) The Greens sought subsequent extensions of their projected filing date, which the Court granted, but the Court never set a deadline to file a motion in limine on damages. The Greens subsequently filed this Motion in Limine, and the Court considers it timely filed.

         II. Damages Disclosure Requirements Under Rule 26

         The Greens contend Standard failed to provide its computation of damages. Under Federal Rule of Civil Procedure (“Rule”) 26(a)(1)(A)(iii), parties must, prior to a discovery request, provide other parties with

a computation of each category of damages claimed by the disclosing party- who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.

Fed. R. Civ. P. 26(a)(1)(A)(iii). In its Notes to the 1993 Amendments of Rule 26(a), the Advisory Committee explains that Rule 26(a)

imposes a burden of disclosure that includes the functional equivalent of a standing Request for Production under Rule 34. A party claiming damages or other monetary relief must, in addition to disclosing the calculation of such damages, make available the supporting documents for inspection and copying as if a request for such material had been made under Rule 34.

Fed. R. Civ. P. 26 Advisory Committee Notes, 1993 Amendments re: subdivision (a), paragraph (1). Additionally, “[a] major purpose of the [rule] is to accelerate the exchange of basic information about the case and to eliminate the paper work involved in requesting such information, and the result should be applied in a manner to achieve these objectives.” Id., 1993 Amendments re: subdivision (a). Parties must adhere to this Federal Rule of Civil Procedure for discovery to proceed smoothly.

         Standard argues it provided what parties typically provide as damage calculations in Rule 26(a)(1) disclosures, has since produced additional damages information, and will supplement with information from its damages experts. (Opp'n 8, ECF No. 480.) Standard also reminds the Court it will produce expert discovery when ordered by the Court. (Id. at xxi-xxii, xxix, 8.) The Greens respond that the expert discovery cutoff has no relevance to Standard's discovery obligations because Rule 26(a) prevents a party from deferring damage discovery and calculations until it must provide expert discovery. (Reply in Support of Mot. in Limine & for Sanctions Regarding Standard's Deficient Resps. re: Damages (“Reply”) 18, ECF No. 488.)

         Standard made its initial disclosures on April 2, 2015, and failed to state an estimated amount of damages or how it calculated its damages. (Defs. Richard N. Reese & Standard Plumbing Supply Co., Inc.'s Initial Disclosures 5, ECF No. 461-1.) Standard supplemented its disclosures a day later but did not change its damages disclosure. (Defs. Richard N. Reese & Standard Plumbing Supply Co., Inc.'s 1st Am. ...


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