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Richard Shapiro v. City of Carlsbad

April 19, 2012

RICHARD SHAPIRO,
PLAINTIFF,
v.
CITY OF CARLSBAD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL DISCOVERY, FOR SANCTIONS, AND FOR AN INDEPENDENT MEDICAL EXAMINATION

[DOC. NO. 176]

Before the Court is Defendants' motion to compel discovery and for sanctions for non-disclosure. Defendants also seek an order requiring Plaintiff to submit to an independent medical examination. As provided herein, the motion to compel complete disclosures under Fed.R.Civ.P. 26(a) is GRANTED. The motion to preclude from admission documents not produced under Rule 26(a)(ii) is DENIED without prejudice. The motion to compel an independent medical examination is DENIED.

1. Rule 26(a) Disclosures

Defendants assert that Plaintiff's disclosures made pursuant to Rule 26(a) are deficient. Defendants seek an order precluding the admission of documents not produced as required by Rule 26(a)(ii), and compelling Plaintiff to supplement his disclosures under Rule 26(a)(iii) regarding damages.

Rule 26(a) provides for the required disclosures of four categories of information by each party without awaiting a discovery request. Rule 26(a)(1)(C) governs the timing of the required disclosures (generally 14 days after the discovery conference under Rule 26(f)) and Rule 26(e) requires that the required initial disclosures be supplemented as necessary.

At issue here are the required initial disclosures under Rule 26(a)(ii) and (iii). Rule 26(a)(ii) requires the disclosure of: a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.

In his supplemental initial disclosures, in his response number 1, Plaintiff identified documents, by Bates number, which had been produced by Defendants. The Court finds that disclosure to be sufficient. In his supplemental response number 2a, Plaintiff identified all paper and electronic documents denoted in Plaintiff's original and amended statement of undisputed facts and evidence in support of his motion for summary judgment. Plaintiff explained that the data includes, but is not limited to, websites, digital audio files and DVDs. Defendants assert that Plaintiff has failed to produce the underlying documentation and that the reference to this information is deficient.

The Court agrees that Plaintiff has not complied properly with the disclosure requirements of Rule 26(a)(ii) regarding disclosure 2a. Plaintiff must produce, within 14 days of this Order, the underlying documents and data or risk having that evidence excluded in any hearing on the merits of this case.

Defendants also object to Plaintiff's supplemental disclosures 2b and 2c in which he identifies 50 digital audio files of conversations with his ex-wife and other audio files of city council meetings and identifies a binder of documents from the Shapiro v Shapiro case. Plaintiff did not produce the underlying documents and tapes. Plaintiff claims that the information may relate to impeachment but will only be needed and used to refute any insinuation or initmation regarding Plaintiff's veracity. (Doc. No. 177 at 2). As noted above, Rule 26(a)(ii) excludes from the requirement of disclosure evidence that may used solely for impeachment. Unless Plaintiff provides Defendants with the actual documents and tapes, he runs the risk of being limited to using them for any other purpose. No further supplementation is required from Plaintiff unless he intends to make evidentiary use of these materials other than for impeachment. To the extent Plaintiff intends to use this material as evidence in support of a claim, he must produce it to Defendants within 14 days of this Order. By failing to comply, Plaintiff may be precluded from using this evidence for any other purpose in connection with any hearing on the merits in this case.

More significantly, Defendants challenge Plaintiff's disclosures under Rule 26(a)(iii). Rule 26(a)(iii) requires the disclosure of a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of the injuries suffered.

In his disclosures under this subsection, Plaintiff incorporated by reference the statement of damages attached to his second amended complaint. (Doc. No. 61 at 37). Having reviewed the statement of damages, particularly damage claims A through C, the Court finds that it is not a sufficient disclosure under Rule 26(a)(iii). Although it may qualify as a "computation," the statement of damages in the second amended complaint is conclusory and no basis for the computation is provided. Plaintiff must provide underlying documents, to the extent any exist, to support his computation. Such disclosures must be made within 14 days of the date of this Order. Should he fail to do so, Plaintiff may be precluded from using any such document to establish his damages at any hearing on the merits in this case.

In his disclosure regarding damages number 2, Plaintiff also referred to approximately 50 digital audio files of conversations with his ex-wife and other audio files of city council meetings. To the extent that Plaintiff intends to present any of these files in support of his damages claim, he must produce them to Defendants within 14 days of the date of this Order. Otherwise, Plaintiff may be ...


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