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RICE II v. MOREHOUSE (2021)

United States Court of Appeals, Ninth Circuit.2021-03-08No. No. 18-35459

Summary

Holding. The appellate court affirmed the district court's exclusion of Rice's expert witness testimony as a proper sanction for untimely disclosure under Rule 37(c)(1), finding no abuse of discretion.

Lee Arthur Rice II appealed the district court's decision to exclude expert witness testimony from trial as a sanction for failing to timely disclose his experts under Federal Rules of Civil Procedure 26 and 37. Rice had disclosed his experts in December 2017, more than three years after the September 2014 deadline set by the scheduling order. Rice argued the district court abused its discretion by not finding his delay was substantially justified, pointing to post-deadline events like defendants' qualified immunity appeals and a protective order issued in June 2014 that limited discovery scope.

The appellate court rejected Rice's justifications. Post-deadline events logically cannot excuse a failure to meet the original deadline. The protective order did not adequately explain the three-year delay, particularly since the order permitted discovery regarding defendants' roles and allowed certain expert testimony to proceed. The court found no abuse of discretion in excluding the untimely expert disclosures and noted that because the exclusion did not amount to dismissal of Rice's claims, the district court was not required to impose lesser sanctions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether post-deadline events can justify failure to meet expert disclosure deadlines
  • Whether a protective order limiting discovery scope excuses a three-year delay in expert disclosure
  • Standard of review for district court sanctions imposed under Rule 37(c)(1)

Procedural posture

Rice appealed the district court's order excluding his proffered expert witnesses' testimony as a discovery sanction in a civil rights case.

Authorities cited

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Opinion

MEMORANDUM **

Lee Arthur Rice II appeals the district courts orders excluding his proffered experts’ testimony from a jury trial in this civil rights case. We have jurisdiction under 28 U.S.C. § 1291. We review the district courts imposition of discovery sanctions under the abuse-of-discretion standard. See Elhouty v. Lincoln Benefit Life Co., 886 F.3d 752, 756–57 & n.15 (9th Cir. 2018). For the reasons discussed below, we affirm.

1

Federal Rule of Civil Procedure 26 requires parties to disclose the identity of an expert witness “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2). Rule 37 “gives teeth” to Rule 26’s requirements “by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); Fed. R. Civ. P. 37(c)(1). “Two express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the parties’ failure to disclose the required information is substantially justified or harmless.” Yeti by Molly, Ltd., 259 F.3d at 1106. In addition, a district court has discretion, “on motion and after giving an opportunity to be heard,” to provide alternative sanctions. Fed. R. Civ. P. 37(c)(1).

Here, Rice disclosed his experts in December 2017, long after the scheduling orders September 15, 2014 expert disclosure deadline had passed. Rice argues that the district court abused its discretion in not finding that Rices delay was “substantially justified.” Rice primarily relies on events that occurred after Rice missed the expert disclosure deadline, such as delays associated with defendants’ appeals of the denial of qualified immunity. But logically, events occurring after the expert discovery deadline cannot justify Rices failure to meet it.

Rice also points to the district courts June 2014 order partially granting the motion for a protective order, but Rice does not explain how the order justifies his delay. The order permitted Rice to conduct discovery “limited to identifying the role each defendant played in the events in question.” To the extent that Rice sought to introduce Dr. Mark Cook as a treating physician, the district court expressly permitted it as non-expert testimony. Similarly, to the extent that Rice sought to introduce Dr. James Davidson as an expert on Post Traumatic Stress Disorder (PTSD), it is not clear how the protective order could have hindered the development of Davidsons testimony about Rices condition.

2

Finally, although Rice also sought to introduce testimony from two experts on the use of excessive force, Rice does not explain how the protective order hindered the development of their testimony or how the protective order substantially justified Rices three-year delay.

In sum, the district court did not abuse its discretion in impliedly finding that Rices untimely expert disclosures were not “substantially justified.” See Elhouty, 886 F.3d at 756–57. Moreover, because Rice concedes that the exclusion did not amount to a dismissal of his claims, the district court was not required to consider lesser sanctions. See R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1247 (9th Cir. 2012). Especially in light of the “particularly wide latitude” we give to a district courts imposition of sanctions under Rule 37(c)(1), Yeti by Molly, Ltd., 259 F.3d at 1106, we decline to disturb the district courts imposition of sanctions under that rule here.

AFFIRMED.

FOOTNOTES

1

.   Rice also appeals the district courts order granting partial summary judgment to defendants, which we reverse in a separate opinion.

2

.   In any event, Rices attorney only recently discovered Rices PTSD, and so the protective order could not have hindered the development of that testimony before the September 2014 deadline. Rice does not argue here that the recent discovery of his PTSD substantially justified his delayed disclosure of Dr. Davidson.