United States District Court, D. Utah
GARTH O. GREEN ENTERPRISES, INC. et al., Plaintiffs & Counterclaim Defendants,
RANDALL HARWARD, et al., Defendants & Counterclaim Plaintiffs.
J. Shelby District Judge.
ORDER GRANTING IN PART AND DENYING IN PART MOTION IN
LIMINE AND FOR DISCOVERY SANCTIONS (ECF NO. 461)
J. Furse United States Magistrate Judge.
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 finds Standard failed to make its required
causing harm to the Greens. The Court GRANTS the Motion in
part and DENIES the Motion in part. 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.
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.
Damages Disclosure Requirements Under Rule 26
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
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
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.
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.)
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. ...