How Untimely Discovery Can Get Expert Reports Excluded

The Federal Rules of Civil Procedure are to ensure fair play and that there are no “surprises” in a lawsuit. While there are those who long for Perry Mason dramatic cross-examination, the real world has deadlines that matter. The failure to include ESI that supports a party’s defenses in Rule 26(a) initial disclosures can really tick off the opposing party. Judges also get miffed at that conduct.

Wal-Mart learned this lesson the hard way when ESI used in expert reports were not disclosed until after the close of fact discovery to the Plaintiffs.

In a class action over whether cashiers needed to be provided seats, the Plaintiffs requested information supporting the Defendant’s claim that nature of being a cashier does not reasonably permit the use of a seat. The Defendants produced 87 hours of video with cashiers using stools that included injuries to employees and customers caused by the stools. San Jose Div. Nisha Brown v. Wal-Mart Store, 2018 U.S. Dist. LEXIS 71437, at *3-4 (N.D. Cal. Apr. 27, 2018).

Plaintiffs also requested cashier productivity reports called SWAS. Defendants produced 600 SWAS reports, explaining a complex multiple step process was needed to generate the reports. Brown, at *4-5.

The Defendants produced three expert reports two months after the Plaintiffs filed a summary judgment motion. Brown, at *5. The Defendant had provided one expert 650 hours of video for his report, compared to the 87 hours produced to the Plaintiffs. Another expert was provided 357,450 SWAS reports, compared to the 600 produced to the Plaintiffs. Brown, at *5-6.

It is not good when a judge refers to the volume of late produced discovery as “staggering.” Brown, at *6.

The Plaintiffs [quite rightly] filed a sanctions motion pursuant to Rule 37(c)(1) for the Defendants failing to included the late discovery in their mandatory Initial Disclosures under Rule 26(a)(1)(A)(ii) or to supplement their disclosures under Rule 26(e)(1)(A). The sanction for not disclosing information that supports the claims or defenses of a lawsuit is mandatory preclusion unless the failure was substantially justified or harmless. Brown, at *6-7.

The Three Expert Reports

The Court held that the 650 hours of video was not timely disclosed. Moreover, the Plaintiffs had to ask about the video after reviewing the expert report. The Court found that the late disclosure was neither substantially justified or harmless, because the disclosure was made after the close of fact discovery and the Plaintiffs had filed a summary judgment motion in reliance on the Defendant’s representation they had produced all discovery. Brown, at *10-16. While the Defendants were willing to allow additional discovery that would cause significant changes to the case schedule. Brown, at *15-16.

The Court put the parties on “equal footing” by excluding the late produced ESI and striking the expert’s report to the extent it relied on that information. Brown, at *17-19.

The second expert report focused on the average productivity of seated cashiers versus standing cashiers, this relied on the SWAS productivity reports. Brown, at *19. The Defendant initially had difficultly acquiring these reports, but switched to another service provider who had a different methodology for extracting the data. The problem with that is that was all done after the close of fact discovery. Brown, at *19-22. The Court found the late disclosure was untimely and not harmless. Brown, at *22-25.

The Court excluded the second expert’s report in its entirety, because the export relied exclusively on the 356,850 SWAS reports. As the Court explained:

Wal-Mart’s actions here are particularly egregious because Plaintiffs expressly requested the SWAS reports, but Wal-Mart produced a very small fraction without informing Plaintiffs that production was incomplete. Then, Wal-Mart turned around and retrieved the SWAS reports for itself, giving them to its own expert, Dr. Foster, but still holding them back from Plaintiffs. Wal-Mart provided the additional 356,850 SWAS reports only after Plaintiffs affirmatively asked for them, and, by that time, fact discovery had closed and the deadline for expert opening reports had elapsed. Wal-Mart thus stripped Plaintiffs of the opportunity to engage in further fact discovery and have their expert consider this evidence in his opening expert report. Exclusion is commensurate with the harm caused by Wal-Mart’s failure to timely disclose and has been endorsed in previous cases presenting similar circumstances.

Brown, at *26-27.

The third expert relied on 45 minutes of video on consumer perception of seated cashiers. While the production was untimely, the Court found it was harmless because the footage was only 45 minutes long.

Bow Tie Thoughts

The sanction of mandatory preclusion under Rule 37(c)(1) for failing to disclose ESI is a rule with teeth to ensure compliance with Rule 26(a)(1). One of the core tenants of our rules is fair play. Withholding gigabytes of data that for one’s own expert is the antithesis of our civil discovery rules. The big lesson is have eDiscovery plans, and if additional data is discovered, disclose it to the other side.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.