United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon United States District Judge.
September 11, 2018, U.S. Magistrate Judge Paul
Papak issued an Opinion and Order (ECF 118)
resolving Plaintiff's Motion for Imposition of Sanctions
(ECF 99) and two discovery motions by Plaintiff (ECF 102 and
103). Magistrate Judge Papak denied the sanction of
dismissing Defendants' counterclaims because he found the
lesser sanction of precluding certain evidence would be
sufficient to address the alleged discovery deficiency.
Magistrate Judge Papak denied Plaintiff's motion to
declare some documents admissible or re-open discovery for a
limited purpose and granted in part Plaintiff's motion
for redesignation of documents and to compel production of
some documents. Plaintiff objects only to the portion of
Magistrate Judge Papak's Opinion and Order relating to
Plaintiff's motion for sanctions. Because the Court is
not reviewing a magistrate's findings and recommendation
that the Court must consider in full and either adopt or not,
the Court does not consider the portions of Judge Papak's
Opinion and Order to which Plaintiff did not object. The
Court considers the objected-to portion of the Magistrate
Judge's Opinion and Order for clear error.
Review of Magistrate's Opinion on Nondispositive
Federal law permits a magistrate judge in a civil action
“to hear and determine any pretrial matter pending
before the court, except a motion for injunctive relief, for
judgment on the pleadings, for summary judgment, . . . to
dismiss or to permit maintenance of a class action, to
dismiss for failure to state a claim upon which relief can be
granted, and to involuntarily dismiss an action.” 28
U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P.
72(a) (“Nondispositive Matters. When a pretrial matter
not dispositive of a party's claim or defense is referred
to a magistrate judge to hear and decide, the magistrate
judge must promptly conduct the required proceedings and,
when appropriate, issue a written order stating the
decision.”). When a magistrate judge decides a matter
under § 636(b)(1)(A), a district judge may reconsider
the magistrate's order if the order is “clearly
erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A); see also Fed. R. Civ. P. 72(a)
(“The district judge in the case must consider timely
objections and modify or set aside any part of the order that
is clearly erroneous or is contrary to law.”); LR 72-1
(designating magistrate judges in this district “to
conduct all pretrial proceedings authorized by 28 U.S.C.
§ 636(b) and Fed.R.Civ.P. 72”).
26(a)(1)(A)(iii) requires disclosure of a “computation
of each category of damages claimed by the disclosing
party” and that the disclosing party make available for
inspection and copying (or produce) the documents on which
each computation is based, unless those documents are
privileged or otherwise protected from disclosure. “The
computation of each category of damages requires more than
the listing of the broad types of damages so as to enable the
defendants to understand the contours of their potential
exposure and make informed decisions regarding settlement and
discovery.” Calvert v. Ellis, 2015 WL 631284,
at *2 (D. Nev. Feb. 12, 2015) (quotation marks omitted).
Production of documents and making witnesses available is
insufficient to comply with this rule. See Ishow.com,
Inc. v. Lennar Corp., 2017 WL 3020927, at *4 (W.D. Wash.
July 14, 2017) (“Making certain documents available and
promising that someone will testify regarding damages is not
a ‘computation' and fails to apprise defendants of
the extent of their exposure in this case.”).
26(e) of the Federal Rules of Civil Procedures provides, in
relevant part, that:
A party who has made a disclosure under Rule 26(a)-or who has
responded to an interrogatory, request for production, or
request for admission-must supplement or correct its
disclosure or response:
(A) 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).
37(c)(1) prohibits a party from using at trial, at hearing,
or on a motion evidence that properly was not disclosed as
required under Rule 26(a) or (e). This sanction is
“self-executing” and “automatic, ”
and no showing of bad faith or willfulness is required.
Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259
F.3d 1101, 1106 (9th Cir. 2001); see also Hoffman v.
Constr. Protective Servs., Inc., 541 F.3d 1175, 1180
(9th Cir. 2008), as amended (Sept. 16, 2008)
(“Finally, we reject the notion that the district court
was required to make a finding of willfulness or bad faith to
exclude the damages evidence. To the contrary, the portion of
Rule 37 relied on by the district court has been described as
‘a self-executing, automatic sanction to provide a
strong inducement for disclosure of material.'”
(quoting Yeti, 259 F.3d at 1106)). “The only
exceptions to Rule 37(c)(1)'s exclusion sanction apply if
the failure to disclose is substantially justified or
harmless.” Goodman v. Staples The Office
Superstore, 644 F.3d 817, 827 (9th Cir. 2011). Rule
37(c)(1) also permits additional sanctions, including
striking pleadings and dismissing claims or counterclaims, by
expressly incorporating the sanctions of Rule 37(b)(2)(A).
Ninth Circuit has set out five factors that a court must
weigh when considering the harsh sanction of dismissal. These
factors are: “(1) the public's interest in
expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.” Omstead v. Dell, Inc., 594
F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). Dismissal
is proper when “at least four factors support
dismissal” or if “three factors strongly support
dismissal.” Yourish v. Cal. Amplifier, 191
F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City
of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)).
April 7, 2016, Defendants provided their initial disclosures
to Plaintiff under Rule 26(a). Under Section III, ...