United States District Court, S.D. California
ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY
DISPUTE REGARDING DEFENDANT'S INITIAL DISCLOSURES [ECF
Mitchell D. Dembin United States Magistrate Judge.
Joint Motion presents Plaintiffs motion for sanctions against
Defendant for alleged violations of Rule 26, Fed. R. Civ. P.,
filed on June 18, 2019. (ECF No. 39). Specifically, Plaintiff
wants Defendant to be sanctioned for failing to include in
its initial disclosures under Rule 26(a)(1)(A)(ii) the
“Elite Binder” used by Defendant's managers
as a resource for handling certain duties; scheduling and
staffing documents for the Del Mar restaurant from July 25,
2017, to November 1, 2017; and documents reflecting written
performance warnings regarding Plaintiff allegedly written by
Plaintiffs manager, Ms. West. Plaintiff also seeks to
re-depose certain witnesses at Defendant's expense.
26(a)(1)(A)(ii) requires each party to provide to the other
parties, without a discovery request, “a copy - or a
description by category and location - of all documents that
the disclosing party has in its possession, custody or
subject to its control and may use to support its claims or
defenses.” Rule 26(e) requires a party who has made a
disclosure under Rule 26(a) to supplement its disclosure
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....
Civ. P. Rule 26(g) requires that every disclosure under Rule
26(a)(1) be signed by an attorney of record. By signing, the
attorney is certifying that to the best of the attorney's
knowledge, information and belief formed after a reasonable
inquiry, that the disclosure is complete at the time it was
made. Rule 26(g)(1)(A). Sanctions may be imposed upon the
signer who violates this rule without substantial
justification. Rule 26(g)(3).
Rule 37(c), Fed. R. Civ. P., provides for sanctions for
failing to disclose or supplement under Rule 26(a) or (e)
unless the failure is substantially justified or harmless.
initial disclosures under Rule 26(a)(1)(A)(ii), Defendant
identified categories of documents that it may use to support
its claims and defenses. The categories included
“Plaintiffs personnel file and other personnel-related
documents regarding Plaintiff and his performance” and
“documents relating to Plaintiff's job
duties.” (ECF No. 39-2 at 8).
Written and Verbal Performance Warnings
West, Plaintiff's last immediate supervisor, testified in
deposition that she issued a verbal and written warning to
Plaintiff regarding his performance and that the verbal
warning was memorialized in a writing. Defendant asserts that
despite several in-depth searches, those writings cannot be
located. Plaintiff provides no evidence to suggest that
Defendant had and destroyed these documents in anticipation
of or during this litigation.
position here is hard to fathom. These documents, if they
existed, likely would benefit Defendant and harm Plaintiff.
As it stands, the fact that Defendant cannot produce
documentary support for a manager who has claimed that she
did write up Plaintiff for deficient performance is even
better for Plaintiff. Defendant cannot produce documents that
are not within its possession, custody or control, despite
reasonable efforts to locate them. No sanction will issue on
Staffing/Scheduling Records ...