Rodriguez v. Akima Infrastructure Services, LLC

Background

Sarah Rodriguez brought claims under the federal Family and Medical Leave Act, the California Family Rights Act, and California wrongful-termination law. She alleged that she requested and took leave related to the birth of twins and that the defendants discharged her while she was on approved leave.

The district court initially granted defendants’ motion for summary judgment, but the Ninth Circuit reversed after finding a genuine dispute about whether Akima replaced Rodriguez while she was on leave under the federal Family and Medical Leave Act. The case was returned to the district court, where fact discovery remained closed.

On April 22, 2019, Rodriguez produced emails and related documents for the first time. Akima then moved for evidentiary sanctions or, alternatively, to modify the scheduling order.

Legal standard

Federal Rule of Civil Procedure 26 requires parties to disclose documents in their possession, custody, or control that they may use to support their claims or defenses. The rule also requires timely correction or supplementation of incomplete disclosures. Rule 37(c)(1) generally prevents a party from using information that was not properly disclosed at a motion, hearing, or trial unless the failure was substantially justified or harmless. The party facing sanctions bears the burden of showing substantial justification or harmlessness.

Analysis

Rodriguez did not dispute that she failed to produce the materials by the initial-disclosure deadline or the discovery cutoff. She also conceded that the failure was not substantially justified. She argued only that the failure was harmless because Akima could have found copies of the emails through its own investigation.

The court found that argument insufficient. Rodriguez did not show that Akima actually knew about or possessed the emails. The court concluded that Akima had prepared its litigation strategy without knowing about them and therefore had not had an opportunity to conduct discovery concerning the emails, including questioning Rodriguez or other correspondents about them.

The court also explained that the disclosure rules serve more than the purpose of making documents available. Timely disclosure allows the opposing party to investigate the documents, evaluate potential witnesses, and prepare for trial without surprise. Akima’s possible ability to find the materials through an independent investigation did not make the late disclosure harmless.

Disposition

The court granted Akima’s motion for evidentiary sanctions. It excluded the materials Rodriguez served on April 22, 2019 under Rule 37(c)(1), and ruled that Rodriguez could not use them as evidence on a motion, at a hearing, or at trial. The court also vacated the hearing set for October 23, 2019. The opinion does not separately state a disposition on the alternative request to modify the scheduling order.