United States District Court, D. Alaska
ORDER [RE: MOTIONS AT DOCKETS 68, 75]
JOHN
W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT.
At
docket 68, Defendants filed a motion for sanctions or,
alternatively, a motion to compel based upon Plaintiff's
failure to provide initial disclosures as required by Rule
26(a)(1). Plaintiff responds at docket 71. Defendants reply
at docket 74. Defendants then filed a motion to compel at
docket 75 based upon Plaintiff's failure to respond to
discovery requests. Plaintiff did not file a response. Oral
argument was not requested and would not be of additional
assistance to the court.
INITIAL
DISCLOSURES (Motion at docket 68)
Plaintiff
filed its complaint on December 24, 2014. Shortly thereafter
Plaintiff's attorney, Bryon E. Collins, was suspended
from the practice of law. Attorney Lance Wells entered an
appearance on Plaintiff's behalf. On August 25, 2015,
Plaintiff filed a motion to stay proceedings and deadlines,
which the court granted. Thereafter, a new attorney, Vikram
Chaobal, entered an appearance on behalf of Plaintiff. The
proceedings remained stayed until March of 2016 at which time
the court issued an amended scheduling and planning
order.[1] Pursuant to the amended order, the parties
were to exchange initial disclosures by April 4, 2016.
Plaintiff did not file its disclosures. Rather, Mr. Chaobal
withdrew from the case, and, in May of 2016, Plaintiff's
current counsel entered an appearance. Plaintiff did not file
any request to extend the Rule 26 discovery deadline. On June
8, 2016, almost two months after the deadline, Plaintiff
provided only 122 pages of discovery consisting of an
internet printout of Defendants' “interim
report” from January through September of 2014;
Defendants' 2013 annual report; some previously
discovered affidavits; and a few emails and
correspondence.[2]Plaintiff did not provide any documentation
bearing on the damages Plaintiff alleged in its complaint, as
required under Rule 26(a)(1)(A)(iii) and as specifically
requested by Defendants' counsel in correspondence. The
parties conferred on the matter, but Plaintiff nonetheless
did not produce thorough initial disclosures. Defendants then
filed their motion for sanctions or to compel at docket 68,
asking that the court preclude Plaintiff from using any
subsequently disclosed information or witnesses or,
alternatively, order Plaintiff to provide the required
discovery and award attorneys' fees to Defendants.
In its
response, Plaintiff acknowledges that it has failed to
adequately produced the required initial discovery. It states
that the reason for the delay has been due to the change in
counsel and bankruptcy proceedings. It argues, however, that
it has recently started producing documents and that on July
22, 2016, it produced “binders” of
records.[3] Plaintiff asserts that “[b]y the
time the court . . . [rules] on this matter, defense counsel
will have all Rule 26(a) disclosures [fully] availed,
included a damages computation.”[4] Moreover, it
argues that any delay has been harmless.
Defendants
filed their reply on August 8, 2016. They challenge the
adequacy of Plaintiff's disclosures related to damage
calculations that were provided after Plaintiff filed its
response. They assert that while a number of financial
spreadsheets have been produced, the spreadsheets do not
provide any meaningful computation of damages, and there is
no other support documentation provided.
Rule
26(a)(1)(A)(iii) requires that Plaintiff provide a
computation of any damages claimed and allow for inspection
and copying of any supporting documentation. A computation
assumes some sort of analysis or assessment.[5] Plaintiff has not
adequately placed Defendants on notice as to the amount of
damages claimed nor has it adequately explained or supported
the alleged amount as required under the rule.[6]Therefore,
Defendants' motion at docket 68 is GRANTED as follows:
Given
that the litigation is still in the discovery phase,
[7] the
court will provide Plaintiff with additional time to comply
with Rule 26(a)(1)(A)(iii) rather than sanction Plaintiff by
precluding any evidence of damages at this time. Plaintiff is
directed to provide a computation of damages, along with any
supporting documentation, on or before October 3, 2016.
Plaintiff is put on notice that if there are further delays
in providing the ordered discovery, the court will preclude
Plaintiff from using late-provided evidence on a motion, at a
hearing, or at trial.[8]
REQUEST
FOR DISCOVERY RESPONSES (Motion at docket 75)
At
docket 75, Defendants request that the court compel Plaintiff
to respond to the discovery requests propounded by Defendants
on June 30, 2016. Plaintiff did not respond to the motion to
compel and, therefore, Defendants' motion is well
taken.[9]Their motion at docket 75 is GRANTED.
However, because the court has provided Plaintiff with
additional time to comply with its discovery obligations
under Rule 26, the court will also extend Plaintiff's
deadline for answering Defendants' requests for
admissions, interrogatories, and requests for production.
Plaintiff is directed to serve its answers and written
responses to Defendants' interrogatories and requests for
admissions and to respond to their requests for production on
or before October 3, 2016.
ATTORNEYS'
FEES
Pursuant
to Rule 37(a)(5) the court awards Defendants their reasonable
attorneys' fees and expenses directly related to the
drafting of the motions at dockets 68 and 75. Defendants are
directed to file an accounting, setting forth the specific
amount requested and supporting calculations on or before
October 3, 2016. Plaintiff may file a response within seven
days of Defendants' filing.
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