United States District Court, M.D. Florida, Jacksonville Division
United States of America, for the use and benefit of Southern Site & Underground, Inc., Plaintiff,
McCarthy Improvement Company & Western Surety Company, Defendants.
PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.
This case involves a dispute about payment for work Southern
Site & Underground, Inc. (“SSU”), performed
for McCarthy Improvement Company (“McCarthy”). A
statement of the case is in the parties' amended joint
pretrial statement. Doc. 129 at 1-2.
the Court are (1) the defendants' renewed motion for
sanctions, Doc. 157, and SSU's response,
Doc. 163; (2) SSU's motion to exclude Lonnie
Rudy Carroll, Jr., as an expert witness, Doc. 93,
and the defendants' response, Doc. 108; (3)
SSU's motion to exclude evidence and argument on its
compliance with grading tolerances, including testimony from
Ryan Carstensen, Doc. 124, and the defendants'
response, Doc. 137; (4) the defendants' motion
to exclude expert testimony from Lisa and Leslie Mosley,
Doc. 142, and SSU's response, Doc. 146;
and (5) SSU's motion for an order to show cause why
McCarthy should not be sanctioned for improperly paying a
witness, Doc. 125, and McCarthy's response,
Defendants' Motion for Sanctions
defendants seek sanctions against SSU and its counsel for
“significant misconduct” and “repeated
misrepresentations” to the defendants and the Court.
Doc. 157. They describe the conduct they contend
warrants sanctions, including withholding evidence during
discovery and disobeying a Court order. Doc. 157.
They contend the alleged misconduct has prejudiced them by
“denying them access to key documents used by SSU to
support its damages within a time frame to allow analysis
prior to the filing of motions and taking of
depositions” and causing them “to spend
additional tens of thousands of dollars both in pursuit of
these documents and in analysis of the wrong documents,
particularly related to Wenick's calculations.”
Doc. 157 at 21. They ask the Court to preclude SSU
from using evidence or testimony on damages based on anything
other than actual costs, strike SSU's expert witnesses,
award attorney and expert-witness fees related to the
misconduct, strike the complaint or dismiss the action with
prejudice, and impose any other appropriate sanction.
Doc. 157 at 23.
responds sanctions are unwarranted because it violated no
discovery order, the defendants have suffered no prejudice,
the defendants ultimately received all necessary documents,
the continuance of the trial and opportunity for additional
discovery cured any potential prejudice, and no sanction is
necessary as punishment or to ensure compliance with future
orders. Doc. 163 at 2.
Financial Information and QuickBooks Files
March 2015, the defendants issued their first request for
production seeking “[a]ll accounting records, cost
reports, and budget reports which reference or relate to the
Project.” Doc. 141-1 at 3. SSU's original
counsel responded it would produce the requested documents as
kept in the usual course of business. Doc. 141-3 at
2. It produced a purported job cost report as a PDF
document. Doc. 141-4. After SSU's original
counsel withdrew, its new counsel provided amended responses
to the first request for production stating SSU would produce
the requested documents to the extent it had them. Doc.
141-6 at 2. SSU produced the same report, but this time
with Bates labels. Doc. 157 at 5; Doc.
defendants' expert, William Gurry, contends, “A
cost report is … typically used as a starting point in
claims analysis, ” and the PDF document produced by SSU
is a series of spreadsheets that would be
“backup” for a true cost report. Doc. 95-9 at
18. He contends some of the data is incomplete and does
not appear to have been created contemporaneously with the
project. Doc. 95-9 at 18.
April 2015, the defendants issued a second request for
production seeking financial information including tax
returns, balance sheets, profit-and-loss statements,
depreciation schedules, and equipment maintenance records.
Doc. 50-1 at 4-7. At a hearing on a motion to compel
responses to the second request for production, SSU's
counsel represented his client had responded it had no tax
returns for 2011 to 2013 and no depreciation schedules.
Doc. 118 at 50-51. He stated, “[A]s far as I
know, these people never took depreciation on their
equipment. … [T]hey don't do end-of-year balance
sheets. They don't do financial statements because they
don't have loans. … There just hasn't been
reason for them to create these documents.” Doc.
118 at 49. He repeated, “There are no depreciation
schedules. … They're not aware of any. If there
are any on any tax returns, it's something that
they'd have forgotten about by now.” Doc. 118
at 51. The Court granted the defendants' motion to
compel SSU to produce the requested financial information.
Doc. 50 at 4, Doc. 57 at 2-3, Doc. 118
the Court's order, Lisa Mosley emailed her counsel
explaining she had asked SSU's accountant “about
any depreciation schedules or statements” and
“[a]ll he had was a [depreciation] [s]chedule for
2014.” Doc. 163-2. She attached some
responsive documents, including the depreciation schedule and
some tax returns, and indicated no other responsive documents
existed. Doc. 163-2.
January 2016, SSU produced the depreciation schedule and tax
returns. Doc. 157 at 2, Doc. 157-1. Its
counsel explained there had been a
“miscommunication” between SSU and its accountant
regarding the depreciation schedule, and “no records
indicating current book value, service maintenance,
internally or accountant prepared balance sheets (other than
the financial information found as a part of the tax
returns), or profit and loss statements” exist.
Mosley's February 2016 deposition, she testified SSU uses
QuickBooks accounting software. Doc. 67-1 at 34. She
testified SSU did not maintain or run job cost reports in the
ordinary course of business. Doc. 67-2 at 133, 135.
She asserted she had created the document produced as a job
cost report using data from QuickBooks for material costs and
other costs but not for owned-equipment costs because she
does not allocate those in QuickBooks. Doc. 67-2 at
next day, the defendants issued a request for production of
“Quickbooks accounting data file(s) and any other
electronic data files in native electronic format covering
the period from January 1, 2011[, ] through December 31,
2013.” Doc. 141-7 at 5. In March 2016, the
parties agreed SSU would produce the data if it could
segregate the unrelated data files. Doc. 122-4 at 2.
March 2016, the defendants subpoenaed SSU's accounting
firm and bonding agent for balance sheets and profit-and-loss
statements. Doc. 157-2, Doc. 157-4. Both
produced responsive documents. Doc. 157-3; Doc.
157-5. The accountant represented in an email
accompanying his production that SSU had provided those
documents for tax returns for the past four years. Doc.
157-3 at 1. In an affidavit, he explained he either
visits SSU's office or remotely logs in to its computer
system to gather necessary information from QuickBooks.
Doc. 132 ¶ 5. He represents the financial
documents provided were printed in the ordinary course of
preparing the tax returns, he adjusts them to create the
balance sheets and income statements, and year-end
adjustments may cause discrepancies between the financial
documents produced and the final balance sheets attached to
the tax returns. Doc. 132 ¶¶ 6, 7. In an
undated email,  he sent Lisa Mosley balance sheets, income
compilation letters, and income statements from 2012 and
2013. Doc. 163-6 at 1. The subject line reads,
“Financial statements attached for review.”
Doc. 163-6 at 1. Lisa Mosley testified she did not
recall receiving the email. Doc. 154 at 108-09.
August 2016, less than a month before the previously
scheduled trial date, SSU produced QuickBooks files that,
according to a bookkeeper's declaration, show it
maintained balance sheets and profit-and-loss statements in
the ordinary course of business and had created
“memorized reports” to allow printing of that
data. Doc. 141-8 ¶¶ 15-16, Doc. 157 at
3, Doc. 157-6. Lisa Mosley confirmed her
QuickBooks had memorized reports for profit-and-loss
statements that could be run by clicking a button but said
she did not run the reports regularly. Doc. 154 at
112-15. She stated the standard reports from QuickBooks
would be inaccurate. Doc. 154 at 157-58.
Mosley testified she entered invoices for job purchases into
QuickBooks but did not accurately allocate them to individual
projects. Doc. 154 at 19-20. She also entered all of
SSU's income and payments but did not always accurately
categorize or allocate them. Doc. 154 at 62-64.
QuickBooks accurately tracks the gross wages and employment
tax paid to each SSU employee. Doc. 154 at 27. It
does not accurately track worker's compensation, markup,
or vacation pay. Doc. 154 at 28- 29, 31-32. To
prepare the document originally produced as a job cost
report, Lisa Mosley used data on materials and other
categories of expenses from QuickBooks, made adjustments
based on invoices and receipts, and added other categories of
expenses not tracked in QuickBooks. Doc. 154 at
Court granted the defendants' motion to continue the
trial to allow sufficient time to review the QuickBooks data
and allowed discovery on it. Doc. 145. The Court
observed, “Whether in response to the first request for
production or follow- up communications, the plaintiff should
have produced the QuickBooks data well before” it did.
Doc. 145 at 2.
the Court continued the trial, SSU produced additional
QuickBooks backup files dated October 9, 2014, including a
report titled “Flat Lot-Actual Cost DETAIL
(ALL).” Doc. 157 at 6-7; Doc. 157-6;
Doc. 157-8. Lisa Mosley testified she might have
created the report when responding to discovery requests.
Doc. 154 at 121-24. She said she did not produce the
report in discovery because it was “incomplete”
and “would not include all costs.” Doc. 154
at 123-24. She testified the memorized QuickBooks
reports would not respond to a request for all accounting
records, cost reports, and budget reports because they do not
“hold all the costs and they would have been inaccurate
and incomplete.” Doc. 154 at 130. SSU's
accountant stated in an affidavit that SSU's
“method of accounting does not require a job cost
schedule.” Doc. 132 ¶ 8.
February 2014, Wenick met with SSU and reviewed project data.
Doc. 95-6 at 2. He continued reviewing, cost reports
and other project data through May 2014, when he prepared a
damage calculation. Doc. 95-6 at 2-8. SSU provided
Wenick a spreadsheet prepared by Lisa Mosley containing
details of various costs allocated to the project. Doc.
67-2 at 49-50; Doc. 95-1 at 83-87; Doc.
95-2 at 12, 17-19, 82-84, 192; Doc. 95-8; Doc. 154
at 104. She testified she put “everything that
[she] had that had to do with the project” into binders
and prepared a spreadsheet regarding the equipment and
“how it applied to the claim, whether it was extra
downtime or so on and so forth.” Doc. 67-1 at
134-35. Wenick reviewed the spreadsheet and made
modifications and calculations in another spreadsheet.
Doc. 95-2 at 12, 19, 24-25; Doc. 95-6 at 7-8;
Doc. 154 at 104.
expert disclosures were originally due in April 2015,
Doc. 16, but the deadline was extended into May 2015
after the parties agreed to extend discovery, Doc.
19 (unopposed motion to extend deadlines), Doc.
21 (amended case-management and scheduling order). SSU
did not disclose an expert by the deadline and, in June 2015,
the Court granted a joint motion to stay all remaining
deadlines for 45 days. Doc. 25 (joint motion)
Doc. 26 (order staying case). In August 2015, the
Court lifted the stay and, over the defendants'
objection, gave SSU a new expert-disclosure deadline in
November 2015. Doc. 39. On the deadline, SSU
disclosed Wenick as its expert and produced his report.
Doc. 95-3; Doc. 95-4. Three days later, the
defendants issued a request for production seeking all
documents “referenced in SSU's expert report
authored by Louis M. Wenick … and/or reviewed or
relied upon by the author in preparing the report referenced
above.” Doc. 163-9 at 4. A few weeks later,
the defendants wrote to SSU's counsel to explain it was
unclear whether all documents on which Wenick had relied were
produced, including “SSU financial data to include
accounting data related to the Project, adjustments to
financial data, and other financial reports.” Doc.
95-7 at 2-3. They asked SSU to provide “any
withheld documentation immediately.” Doc. 95-7 at
3. SSU responded the proper procedure for seeking
information was through interrogatories and requests for
production. Doc. 95-7 at 4. It represented Wenick
had referenced the cost report and a summary of daily reports
provided by SSU, those documents were work product before the
expert disclosure, he referenced no other “financial
reports, ” and no responsive documents had been
withheld. Doc. 95-7 at 4. The defendants asked SSU
to produce the daily report summary and clarify if any other
document had not been produced. Doc. 95-7 at 6-7.
SSU responded earlier discovery issues made it impossible to
determine if specific documents had already been produced but
agreed to provide a “duplicate copy” of all of
Wenick's documents. Doc. 95-7 at 10.
following week, SSU sent the defendants a thumb drive that
allegedly contained all documents on which Wenick had relied,
except for 70 files of documents that could not be duplicated
and assertedly had already been produced. Doc. 95-7 at
11, 25. The defendants allege the thumb drive contained
Lisa Mosley's spreadsheet but not Wenick's
version. Doc. 157 at 12. SSU does not
contend otherwise. See generally Doc. 163.
February 2016, a few weeks before Wenick's deposition,
the defendants subpoenaed him for documents not already
produced, including documents SSU had provided to him, all
materials he had relied on in forming his opinions, all notes
or work papers he had prepared in connection with the case,
all calculations he had performed or used to reach his
conclusions, and his “entire file associated with this
matter.” Doc. 95-7 at 20. At Wenick's
March 2016 deposition, the defendants learned they still did
not have Wenick's adjusted spreadsheet. Doc. 95-2 at
24-27; Doc. 95-7 at 23, 25. They asked for it.
Doc. 95-7 at 23, 25. SSU's counsel responded
Wenick had not understood he needed to provide native files
for spreadsheets published in his report and stated it would
send missing native files and other documents “in the
next few days.” Doc. 95-7 at 22. In April
2016, SSU produced Wenick's version, titled “Cost
Reports - For Report Adj Dollars.” Doc. 95-7 at
31; Doc. 157 at 10, 13.
and his colleague spent many hours manually keying in data,
trying to “correlate the equipment usage from the
different documents versus the claim, ” revising the
equipment analysis, and checking and revising the as-built
data. Doc. 95-10 ¶¶ 10-13. They did not
bill for all of that time. Doc. 95-10 ¶¶ 10,
12. They would not have spent that time had the
spreadsheets been produced earlier. Doc. 95-10
¶¶ 10, 12.
Law and Analysis
Federal Rule of Civil Procedure 26(a), a party must
provide an expert witness report for an expert witness who is
retained or specially employed to give expert testimony and
who the party may use at trial. Fed.R.Civ.P. 26(a)(2). The
report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). The disclosures must be
made “at the time and in the sequence that the court
orders.” Fed.R.Civ.P. 26(a)(2)(D). The disclosure
requirements are “intended to provide opposing parties
reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony of other
witnesses.” Reese v. Herbert, 527 F.3d 1253,
1265 (11th Cir. 2008) (internal quotation marks omitted).
Rule 26(e), a party must supplement its Rule
26(a) disclosures and other discovery responses as
ordered or “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.”
Fed.R.Civ.P. 26(e)(1). A party must disclose any additions or
changes to an expert witness's report or deposition
testimony by the time pretrial disclosures are due.
Rule 37(c), if a party fails to make or supplement
required disclosures or discovery responses, “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). A court may also or instead, on motion
and after giving an opportunity to be heard, “order
payment of the reasonable expenses, including attorney's
fees, caused by the failure, ” “inform the jury
of the party's failure, ” and “impose other
appropriate sanctions, including any of the orders listed in
Rule 37(b)(2)(A)(i)-(vi).” Fed.R.Civ.P. 37(c)(1).
Rule 37(b), if a party does not obey an order to provide
or permit discovery, the court “may issue further just
orders, ” including:
(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;
(vi) rendering a default judgment against the disobedient
(vii) treating as contempt of court the failure to obey any
order except an order to submit to a physical or mental
Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). Besides or instead of
those sanctions, “the court must order the disobedient
party, the attorney advising that party, or both to pay the
reasonable expenses, including attorney's fees, caused by
the failure, unless the failure was substantially justified
or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(b)(2)(C).
37 gives courts “broad discretion to fashion
appropriate sanctions for the violation of discovery
orders.” Malautea v. Suzuki Motor Co., Ltd.,
987 F.2d 1536, 1542 (11th Cir. 1993). But dismissal or
default judgment should be sanctions of “last resort,
” imposed only if noncompliance is willful or done in
bad faith and lesser sanctions would not suffice.
Id. Noncompliance due to “simple negligence,
misunderstanding, or inability to comply” does not
suffice. Id. Dismissal is not an abuse of discretion
“[w]hen a party demonstrates a flagrant disregard for
the court and the discovery process.”Aztec Steel Co. v.
Fla. Steel Corp., 691 F.2d 480, 481 (11th Cir. 1982).
otherwise admissible evidence probative of a core issue is
inappropriate if it permits a party “to construct, to
maintain, and to proffer to the jury a
‘fiction.'” United States v. CMC II
LLC, No. 8:11-cv-1303-T-23TBM, 2016 WL 7665764, at * 1
(M.D. Fla. Dec. 1, 2016) (unpublished). Such a sanction
“is warranted, if ever, only in an instance of the most
egregious, purposeful, calculated, and otherwise irremediable
enormity by a litigant or by counsel or by both and, even
then, only if the evidence establishing the enormity and the
malevolence that created the enormity is nothing less than
distinct and unmistakable.” Id. Other
sanctions, including a “steep fine against counsel or
against the party or against both and disciplinary action
against counsel, ” are preferable.
expert testimony is a “drastic” sanction
requiring careful consideration. See Brooks v.
United States, 837 F.2d 958, 961 (11th Cir. 1988) (court
abused discretion by refusing to admit expert testimony
because that sanction was too drastic, neither party cited
authority in motions, judge gave no reason, and there was no
indication court considered less severe sanction); In re
Complaint of Fantome, S.A., No. 99-0961-CIV, 2004 WL
5642418, at *1 (S.D. Fla. Dec. 7, 2004) (unpublished)
(refusing to impose “extreme remedy” of excluding
untimely expert report because movants had report for more
than two months before expert's deposition). The
non-disclosing party must establish the failure to disclose
was substantially justified or harmless. Mitchell v. Ford
Motor Co., 318 F. App'x 821, 825 (11th Cir. 2009).
failure to make sufficient expert disclosures is
substantially justified or harmless depends on many factors:
“(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to
cure the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of the
evidence; and (5) the nondisclosing party's explanation
for its failure to disclose the evidence.” Mobile
Shelter Sys. USA, Inc. v. Grate Pallet Sols., LLC, 845
F.Supp.2d 1241, 1250-51 (M.D. Fla. 2012). Sanctions may be
warranted if a delayed disclosure deprives a party of the
ability to disclose a rebuttal expert, impairs its ability to
effectively cross examine the expert at his deposition,
changes the scope of the claims, or is part of a pattern of
“last minute filings and disclosures” that
“have greatly affected the orderly handling of th[e]
case.” See id. at 1251-52.
failure to timely make required disclosures might be harmless
if substantially similar evidence has already been produced,
see Miele v. Certain Underwriters at Lloyd's of
London, 559 F. App'x 858, 861-62 (11th Cir. 2014)
(affirming denial of motion to strike expert's untimely
declaration because expert's report was “materially
similar” to declaration and contained same
conclusions); Taylor v. TECO Barge Line, Inc., 517
F.3d 372, 380 (6th Cir. 2008) (failure to disclose
photographs harmless because similar photographs had been
disclosed), or if the expert has already been questioned by
the opposing party about the information untimely disclosed,
see Jackson v. Allstate Ins. Co., 785 F.3d 1193,
1204 (8th Cir. 2015) (inclusion of new information in
supplemental expert report harmless because expert was
questioned extensively about information at deposition);
Muldrow ex rel. Estate of Muldrow v. Re-Direct,
Inc., 493 F.3d 160, 167-68 (D.C. Cir. 2007) (alleged
failure to disclose expert testimony harmless because subject
arose during deposition and testimony was elaboration on
expert report); Smith v. Tenet Healthsystem SL,
Inc., 436 F.3d 879, 889 (8th Cir. 2006) (expert's
reliance on x-rays not included in report harmless because
expert discussed them at deposition).
insists it produced all responsive financial documents it had
after ordered to and did not deliberately conceal any.
Doc. 163 at 3-6. It contends its accountant had
provided no other document and it was unaware any existed.
Doc. 163 at 3-6. Giving SSU the benefit of the doubt,
sanctions are unwarranted for its response to the
defendants' second request for production. If it was
unaware the documents existed despite seeking the information
from its accountant, it could not be expected to produce
them. The defendants obtained the documents in March 2016,
well before the trial date. And they have had extra time to
analyze them due to the trial continuance.
to disclose spreadsheets on which Wenick relied is more
concerning, though not egregious enough to warrant the
harshest sanctions. The defendants ultimately received the
last spreadsheet in April 2016-five months after the
expert-disclosure deadline but five months before the
original trial date. Doc. 56; Doc. 61; Doc. 157
at 10. They could adequately prepare for Wenick's
and Lisa Mosley's depositions because they received Lisa
Mosley's spreadsheet two months before her deposition and
two-and-a-half months before Wenick's deposition. The
defendants deposed them about the spreadsheet. Doc. 67-2
at 132-38 (Lisa Mosley deposition); Doc. 95-1 at
84-88, 94-95 (Wenick deposition). Wenick also discussed
the information he had relied on and the calculations he had
made. Though the defendants do not provide
copies of the reports for comparison, see generally
Docs. 157-1-157-8, based on their earlier argument
that Wenick's spreadsheet is so similar to Lisa
Mosley's as to render Wenick's calculations
unreliable for lack of verification, Doc. 152, it
appears they were sufficiently similar as to render the
additional delay in producing Wenick's report harmless
for deposition and trial-preparation purposes. The defendants
contend they were prejudiced because their expert would have
spent less time analyzing Wenick's report had SSU
disclosed both spreadsheets, Doc. 157 at 12-13, but
it does not appear this affected the outcome or their ability
to adequately prepare for Wenick's deposition and trial.
defendants have the spreadsheets, their expert has analyzed
them, and by trial they will have had at least 10 months to
prepare to challenge them through cross examination.
Accepting SSU's representations, failing to produce the
spreadsheets sooner resulted from disorganization at the
beginning of the case, though SSU compounded the error by
resisting the defendants' attempts to ensure all
responsive documents had been produced. Prohibiting SSU from
using Wenick's report and testimony is unwarranted. But
the delay caused the defendants' experts to spend more
time (for which the defendants have had to pay more money)
than they would have had the spreadsheets been timely
disclosed. Under the principle that one side should not pay
for the other side's delay, an award of the expenses
(including attorney and expert fees) the defendants would not
have incurred but for the delay is warranted.
to produce QuickBooks files, particularly the
post-trial-continuance production, is most concerning. Though
the defendants have now received the documents they sought
for nearly two years and have been given extra time to review
them, SSU's delays and incomplete productions warrant
sanctions (though, again, not the harshest ones).
QuickBooks files contain financial and other accounting
information relating to its costs on the project. See,
e.g., Doc. 67-2 at 133 (Lisa Mosley's
testimony she relied on data from QuickBooks to compile parts
of the document produced as a job cost report). Yet it did
not produce them in response to the defendants' first
request for production, which asked for “[a]ll
accounting records, cost reports, and budget reports which
reference or relate to the Project.” Doc. 141-1 at
3. And, after the defendants learned of their existence
and specifically requested them, it took six months to
produce them. Still later, after the court had continued the
trial, it produced another responsive document purporting to
show actual costs. See Docs. 157-6, 157-8.
contends it did not maintain the data for a true job cost
report in the ordinary course of business, and points out the
“cost report” in the QuickBooks files is titled
“cost detail” and does not contain all relevant
data. Doc. 163 at 6-9. Regardless of whether the
document is complete or incomplete, it should have been
disclosed sooner as, at a minimum, accounting information.
argues not all of the alleged misconduct involved a discovery
order, so Rule 37 does not apply. Doc. 163 at
16. That argument disregards that Rule 37(c)(1)
allows sanctions for failure to supplement discovery
responses, even without a discovery order.
contends the defendants “repeatedly took no action to
cure what they now claim were discovery transgressions,
” and instead “allowed SSU to believe the steps
taken by SSU to comply with their requests resolved their
concerns.” Doc. 163 at 16. To the contrary,
the record shows that, when the defendants discovered
additional documents might exist, they promptly requested
them. See, e.g., Doc. 141-7 at 5.
complains the defendants “waited until the deadline for
pretrial motions to raise any of these issues to the Court,
with the exception of the lone motion to compel.”
Doc. 163 at 16. To the contrary, the defendants
raised the issue of the missing spreadsheets in their
original motion to exclude testimony from Wenick, Doc.
95. The financial information was the subject of a
motion to compel, Doc. 44. And, after failing to
disclose the QuickBooks data despite having opportunities to
do so, the parties agreed regarding their production in March
2016. Any delay on the defendants' part is outweighed by
the delay on SSU's part.
drastic sanctions of striking the pleadings, dismissing the
action, entering default judgment, and excluding evidence are
unwarranted, particularly given the extra time the defendants
have had to examine the newly produced data and analyze its
effect on their defenses. But an award of expenses the
defendants have incurred due to delayed production is
Court directs the parties to confer on the amount of but-for
expenses. If they cannot agree on an amount without Court
intervention, any party may file a motion asking the Court to
determine an appropriate amount at any time before the case
is closed. The defendants may also cross examine Lisa Mosley
about her discovery delays and failings. The ...