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Davis v. Davison Hotel Company, LLC

United States District Court, Ninth Circuit

July 1, 2013

MARK D. DAVIS
v.
DAVISON HOTEL COMPANY, LLC, et al.

Charles Murray, III, Attorneys Present for Plaintiffs.

Ann Fromholz, Nicole Elemen, Attorneys Present for Defendants.

CIVIL MINUTES - GENERAL

CHRISTINA A. SNYDER, District Judge.

Proceedings: MOTION IN LIMINE (1) TO PRECLUDE ADMISSION OF DOCUMENTS (Docket #51, filed June 3, 2013)

MOTION IN LIMINE (2) FOR EVIDENTIARY SANCTIONS (Docket #52, filed June 3, 2013)

MOTION IN LIMINE TO EXCLUDE WITNESSES (Docket #65, filed June 14, 2013)

I. INTRODUCTION

Plaintiff Mark Davis ("Davis") filed the instant action in Los Angeles County Superior Court on April 13, 2012, and defendants Davidson Hotel Company, LLC ("Davidson") and Thomas Harwell ("Harwell") removed the case to this Court on July 23, 2012. On March 1, 2013, plaintiff filed a first amended complaint ("FAC"), which asserts three claims under California law: (1) retaliation in violation of California Government Code § 12940(h), (2) unlawful harassment in violation of California Government Code § 12940(j), and (3) wrongful termination. In brief, plaintiff alleges that he was subject to harassment due to his association with Tracy Ward ("Ward") - one of plaintiff's former co-workers who identifies as homosexual - and that he was eventually fired for refusing to participate in discriminatory conduct directed at Ward.

On June 3, 2013, plaintiff filed two motions in limine. Defendants filed oppositions to these motions on June 10, 2013, and plaintiff replied on June 17, 2013. Additionally, on June 14, 2013, defendants filed a motion in limine. Plaintiff filed an opposition on June 24, 2013. After considering the parties' arguments, the Court finds and concludes as follows.

II. PLAINTIFF'S MOTIONS IN LIMINE

Plaintiff asks the Court to prevent defendants from calling witnesses and introducing documents that, according to plaintiff, should have been disclosed and produced in connection with the parties' initial disclosures pursuant to Federal Rule of Civil Procedure 26. Rule 26 requires litigants to disclose the following "without awaiting a discovery request":

[T]he name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

[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;

The consequences of failing to comply with the initial disclosure obligations under Rule 26 are set out in Rule 37(c)(1), which provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a)... the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial." Fed. R. Civ. Proc. 37. If the failure to disclose was "substantially justified or is harmless, " however, sanctions are not appropriate. Id . When considering whether evidence should be excluded pursuant to Rule 37, courts have considered "(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence, and (5) the nondisclosing party's explanation ...


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