United States District Court, W.D. Washington, Seattle
STATE FARM FIRE AND CASUALTY, as subrogee for Catherine Robinson, Plaintiff,
HELEN OF TROY, LLC, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO EXCLUDE JOHN WEISS AND
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff State Farm Fire
and Casualty as subrogee for Catherine Robinson (“State
Farm”)'s Motion to Exclude John Weiss and
Sanctions. Dkt. #58. State Farm moves the Court for an order
striking Defendants' witness John Weiss and to impose
sanctions for failing to disclose Mr. Weiss and for violating
this Court's prior Order compelling discovery.
Id.; see also Dkt. #52. Defendants oppose
this Motion, arguing that State Farm failed to meet and
confer and that Plaintiff's other contentions are
incorrect. See Dkt. #45. For the reasons set forth
below, the Court GRANTS IN PART AND DENIES IN PART State
background of this case is not necessary for the purposes of
this Motion. This lawsuit resulted from a fire which largely
destroyed the heating pad, manufactured by Defendants, which
State Farm alleges caused the fire. See Dkt. #1-2.
disclosures were due in this case on April 22, 2016. Dkt.
#15. Defendants identified a single unnamed employee as a
witness. Dkt. #59 at 2. Defendants did not disclose expert
witness Paul Way or witness John Weiss. Id.
Defendants have never supplemented their initial disclosures.
7, 2016, State Farm sent its first set of discovery requests
to Defendants. Dkt. #29-5. State Farm requested all documents
regarding the software and hardware in the heating pad and
the design and manufacturing of heating pad controllers; the
“manner in which the heat pad monitors heat, current,
and voltage, ” all testing or certification of the
software or hardware in the Heating Pad, and heating pad
certifications such as those by U.L. Dkt. #29-5. On August
15, 2016, Defendants served their answers. Dkt. #29-6. Every
answer includes multiple objections with limited or no
Farm filed a Motion to Compel the above discovery on October
13, 2016. Dkt. #28. On December 21, 2016, the Court granted
State Farm's Motion and ordered Defendants to fully and
completely answer by January 6, 2017. Dkt. #52. On January 6,
Defendants informed State Farm via letter that they had
produced “all testing documents in Kaz's possession
in response to State Farm First Set of Discovery, ”
that they did not have the entire UL file, that they did not
have the patent for the heating pad, and that they could not
locate a document called the “Theory of
Operation.” Dkt. #59 at 2-3.
January 31, 2017, Defendants disclosed Mr. Weiss as a
potential witness for the first time via responses to
discovery. Dkt. #59 at 3. Discovery closed on February 27,
2017. Dkt. #43. Prior to the closing of discovery, Defendants
made an effort to arrange for the deposition of Mr. Weiss.
See Dkt. #67-4.
Rule of Civil Procedure 26(a)(1)(A) provides that “a
party must, without awaiting a discovery request, provide to
the other parties… the name and, if known, the address
and telephone number of each individual likely to have
discoverable information - along with the subjects of that
information….” Rule 26(e)(1)(A) further requires
that a party must supplement its initial disclosures
“in a timely manner if the party learns that in some
material respect the disclosure or response 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….” Where a
party fails to comply with these obligations, “the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1). The party facing
sanctions bears the burden of proving that its failure to
disclose the required information was substantially justified
or is harmless. Torres v. City of L.A., 548 F.3d
1197, 1213 (9th Cir. 2008). Furthermore, Rule 26(a)(2)
requires disclosure of expert testimony accompanied by a
written report prepared and signed by the witness.
party fails to comply with a discovery order, the Court may
issue a variety of sanctions including, inter alia,
designating facts to be taken as established for purposes of
the action, prohibiting the disobedient party from opposing
designated claims or from introducing designated matters in
evidence, and rendering a default judgment against the
disobedient party. Fed.R.Civ.P. 37(b)(2)(A). Attorney's
fees must be awarded “unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C).
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