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State Farm Fire & Casualty v. Helen of Troy, LLC

United States District Court, W.D. Washington, Seattle

May 31, 2017

STATE FARM FIRE AND CASUALTY, as subrogee for Catherine Robinson, Plaintiff,
HELEN OF TROY, LLC, et al., Defendants.




         This 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 Farm's Motion.


         A full 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.

         Initial 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. Id.

         On July 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 substantive response.

         State 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.

         On 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.


         A. Legal Standard

         Federal 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.

         If a 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).

         B. Meet and ...

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