United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER
E. SCHREIER UNITED STATES DISTRICT JUDGE
Jerry Janvrin d/b/a J&J Trucking, moves for leave to
supplement his Rule 26(a) disclosures and responses to
discovery requests regarding the damage and computation for
lost income. Docket 27. Defendant, Continental Resources
Inc., opposes the motion. Docket 31. The motion to supplement
15, 2014, plaintiff filed a complaint alleging that defendant
tortiously interfered with plaintiff's business relations
and sought the following damages: loss of income, loss of
value of business, loss of business reputation, costs for
equipment, and all general and special damages permitted
under South Dakota law. Docket 1-3 at 4-5. On October 8,
2014, plaintiff provided defendant with his Rule 26(a)
disclosures, but plaintiff did not include computations of
the amount of damages sought. Docket 26-1; Docket 26-2.
Instead, plaintiff indicated that his damages would be
quantified by an expert. Plaintiff, however, did not disclose
an expert witness by the May 1, 2015 deadline. Further, in
his responses to defendant's interrogatories, plaintiff
did not identify the amount of claimed damages he planned to
seek at trial. Docket 26-3; Docket 26-4. When the discovery
deadline for this case ended September 1, 2015, plaintiff had
not disclosed a computation of his claimed damages. On July
5, 2016, defendant moved this court to exclude evidence of
plaintiff's damages pursuant to Fed.R.Civ.P. 37(c)(1).
Docket 26 at 1.
20, 2016, plaintiff moved this court, pursuant to
Fed.R.Civ.P. 26(e)(1)(B) and Fed.R.Civ.P. 16(b)(4), to allow
plaintiff to supplement his disclosures. Docket 27. Plaintiff
acknowledges that he failed to comply with Rule 26. Docket 28
at 1-4. But he argues that he was not able to provide his
2013 federal income tax return within the discovery period
(Docket 33 at 3), defendant is not unduly prejudiced by
admitting the evidence, and complete exclusion of the
evidence is too harsh of a sanction. Docket 28 at 1-4.
did not properly disclose evidence pursuant to Rule
26(a)(1)(A)(iii) and Rule 26(e)(1)(A) because he did not
provide defendants with a computation of his damages within
the designated discovery period. Therefore, the issues
presented to the court are: (1) whether the violation was
substantially justified or harmless, and (2) whether
exclusion of the evidence is the appropriate remedy.
An Untimely Disclosure of a Computation of Damages.
Rule of Civil Procedure 26(a)(1)(A)(iii) requires parties to
make initial disclosures, including a computation of damages,
and parties must supplement their initial disclosures when
they learn of new information. Fed.R.Civ.P. 26(e)(1)(A). If a
party fails to satisfy an initial or supplemental disclosure,
the court has discretion to apply appropriate sanctions.
Fed.R.Civ.P. 37(c)(1). An untimely disclosure is considered a
nondisclosure. Trost v. Trek Bicycle Corp., 162 F.3d
1004, 1008 (8th Cir. 1998). The “discretion to fashion
a remedy or sanction” is “wide, ” but
“narrows as the severity of the sanction or remedy . .
. increases.” Wegener v. Johnson, 527 F.3d
687, 692 (8th Cir. 2008). To aid the district court in
determining whether a failure to disclose is substantially
justified or harmless and to fashion an appropriate sanction,
the Eighth Circuit has provided a four-part balancing test.
This balancing test considers “the reason for
noncompliance, the surprise and prejudice to the opposing
party, the extent to which allowing the information or
testimony would disrupt the order and efficiency of the
trial, and the importance of the information or
Whether plaintiff's failure to properly disclose a
computation of his damages was substantially
considering whether a party's failure to disclose is
justified, the court evaluates a variety of factors including
the availability of the evidence, the party's knowledge
of the relevancy of the evidence, and whether the party ever
moved the court for additional time to gather the evidence.
See Trost, 162 F.3d at 1008 (finding that failure to
disclose was not justified when plaintiff did not hire an
expert until after defendant produced its expert report and
never sought an extension of the deadline); Wegener,
527 F.3d at 692-93 (finding that the failure to disclose was
not justified because the needed hospital records were easily
discoverable and highly relevant); Carmody v. Kan. City
Bd. Of Police Comm'rs, 713 F.3d 401, 405 (8th Cir.
2013) (finding that the failure to disclose was not justified
by the substantial volume of documents because the officers
never moved for additional time to review the documents).
case, plaintiff argues that the failure to disclose a
computation of damages is justified because the mistake was
inadvertent and arose when plaintiff decided not to retain a
damages expert. Docket 30 at 4. Plaintiff also argues that he
was unable to produce his 2013 tax return to defendant until
after the discovery deadline because the tax return was not
completed. Docket 33 at 3. This argument is similar to the
justifications presented in Trost where the
plaintiff argued that his failure to disclose resulted from
the need to respond to the defendant's expert.
Trost, 162 F.3d at 1008. The court in Trost
found that, if the plaintiff required more time to respond to
the defendant, the plaintiff should have moved the court for
additional time. Id. A party cannot claim the lack
of sufficient time as a substantial justification to a
violation of the Civil Rules of Procedure when that same
party made no effort to gain more time. Therefore, plaintiff
was not substantially justified in not disclosing a
computation of his damages within the discovery period.
Whether plaintiff's untimely disclosure of a computation
of damages was harmless.
considering whether a failure to disclose was harmless, the
court considers “the surprise and prejudice to the
opposing party, the extent to which allowing the information
or testimony would disrupt the order and efficiency of trial,
and the importance of the information.”
Wegener, 527 F.3d at 692. See Trost, 162
F.3d at 1008-09 (finding that the admission of the evidence
would not be harmless because it would disrupt the
court's trial calendar and the other party would not have
time to properly prepare); Tenbarge v. Ames Taping Tool
Sys, Inc., 190 F.3d 862, 865 (8th Cir. 1999) (finding
that the failure to supplement was not harmless because the
other party could not adequately cross examine an expert
witness); Wegener, 527 F.3d at 692 (finding that the
admission of the evidence was not harmless because it would
have postponed an already much-delayed ...