The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
ORDER and FINDINGS & RECOMMENDATIONS
Previously pending on this court's law and motion calendar for April 13, 2006, were plaintiffs' motion to compel depositions and sanctions, filed March 16, 2006, and plaintiffs' motion for terminating sanctions, filed March 22, 2006.*fn1 Although the discovery cutoff has passed, Judge Karlton extended the deadline for the sole purpose of having these motions decided. By order of March 22, 2006, this court ordered the parties to file a Rule 251 statement for plaintiffs' March 16th motion; however, the parties did not comply with that order. The court has now reviewed the papers in any event, and issues the following orders.
Plaintiffs are purchasers of defendant's motor home who have filed this action for breach of warranty. According to plaintiff, issues in the case are whether the motor coach exhibited non-conformities, whether such non-conformities were covered by Monaco's warranty, and whether they were not repaired within a "reasonable number of attempts." Plaintiff's retained expert, Mr. Eidsmoe, was designated to testify on these matters. The complaint seeks rescission and restitution.
I. Plaintiffs' Motion for Terminating Sanctions
Plaintiffs claim that some time after March 1, 2006, defendant's counsel, Mr. Wraith, informed plaintiffs' counsel, Mr. Baker, that Monaco had retained plaintiffs' expert in this case to be an expert for defendant in another matter, and had communicated with him on logistical grounds about the instant case.*fn2 Plaintiffs point to an ex parte application and letter from Mr. Wraith to Judge Karlton, admitting that defendant had potentially tampered with plaintiffs' expert witness. This letter, filed March 7, 2006, requested guidance on how to proceed in order to mitigate damage resulting from defendant's conduct. Plaintiffs claim that Mr. Eidsmoe, an expert in the field of diagnosis and repair of motor homes, having owned a Monaco repair facility for over twenty years, now needs to be replaced on this case because plaintiffs have doubts about his loyalty to their position. In addition to being paid for the matter which they reference, plaintiffs contend that he may get substantially more job opportunities from defendant, and may not want to testify against defendant. Plaintiffs argue that there are no other individuals with Eidsmoe's qualifications and therefore their case is gutted. Plaintiffs seek an order of terminating sanctions pursuant to the court's inherent power.
Defendant claims that when plaintiffs informally designated Eidsmoe as an expert only five months ago in a November 11, 2005 letter, Monaco recognized his name. Prior to this letter, a Monaco employee had unsuccessfully tried to locate the retired Eidsmoe for an expert evaluation in another case. However, after the designation in this case, Monaco found Eidsmoe and sought his expert services in another matter. It was not until March 1, 2006, that Monaco's counsel realized that defendant's conduct with respect to this expert was improper. Counsel immediately instructed defendant to terminate its relationship with Eidsmoe. Defendant contends it has shown no willfulness or bad faith, and acknowledged its mistake immediately.
A. Standards for Terminating Sanctions
Rule 37 authorizes "a wide range of sanctions" for a party's failure to comply with discovery rules or court orders enforcing them. Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983). Penalizing a party "for dilatory conduct during discovery proceedings" is discretionary. Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1102 (9th Cir. 1981) (citing Fed. R. Civ. P. 37(a)(4)).
In addition to Rule 37 sanctions, "[c]courts are invested with inherent powers that are 'governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 2132 (1991)); accord Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 348 (9th Cir. 1995) (recognizing inherent power to dismiss counterclaim for concealing discovery documents); Winn v. Associated Press, 903 F. Supp. 575, 580 (SDNY 1995) (imposing monetary sanctions for deliberately impeding discovery and willful noncompliance with document production).
Precluding evidence so that the recalcitrant party cannot support defenses is comparable to entering dismissal, which "represent[s] the most severe penalty that can be imposed." U.S. v. Kahaluu Const., 857 F.2d 600, 603 (9th Cir. 1988); accord, Valley Engineers v. Electric Engineering Co., 158 F.3d 1051 (9th Cir. 1998). Accordingly, such sanctions are authorized only in "extreme circumstances" for violations "due to willfulness, bad faith, or fault of that party." Kahaluu Const., 857 F.2d at 603; see also Commodity Futures Trading Com'n v. Noble Metals Intern., Inc., 67 F.3d 766,770 (9th Cir. 1995) (affirming standard and upholding sanctions in egregious circumstances).*fn3 Bad faith does not require actual ill will; substantial and prejudicial obduracy may constitute bad faith. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1108 (9th Cir. 2002).
Five relevant factors also determine whether severe sanctions ...