Chen v. L & H Wine & Liquor, Inc.

Background

Plaintiff Jinxu Chen, on behalf of himself and others similarly situated, moved to: (1) exclude portions of Defendants’ deposition testimony that were not designated in the June 1, 2022 proposed pretrial order; (2) exclude defense Exhibits C and D under Federal Rule of Civil Procedure 37; and (3) award monetary sanctions under Rule 37, 28 U.S.C. § 1927, and the court’s inherent authority.

Exhibits C and D were copies of Defendant Long Hua Lin’s passport and WeChat messages between Lin and Chen. Defense counsel produced the materials to Chen’s counsel on or about June 9, 2022. Chen argued that the exhibits should be excluded because they had not been produced during discovery. Chen also argued that sanctions were warranted based on defense counsel’s request for more time to file pretrial materials and the late disclosure of the exhibits.

Court’s Analysis

The court held that Federal Rule of Civil Procedure 16(e) did not provide a basis for excluding the undesignated deposition testimony because the court had not yet entered the parties’ proposed final pretrial order. The court also noted that defense counsel represented that Chen’s counsel had not contacted or conferred with defense counsel before submitting the June 1 proposed “joint” pretrial order. The court would not prevent Defendants from introducing deposition testimony based on what appeared to be a one-sided proposed pretrial order.

The court further held that the deposition excerpts would not be excluded under Federal Rule of Civil Procedure 32 because, in a bench trial, the opposing party must identify a basis for excluding proposed deposition testimony, and Chen had not presented such objections.

Regarding Exhibits C and D, the court assumed, without deciding, that Defendants were required to produce them during discovery. Under Rule 37(c)(1), information not properly disclosed generally cannot be used at trial unless the failure was substantially justified or harmless. The court concluded that the late production was harmless because Chen had not identified any resulting prejudice.

The court also declined to impose sanctions under § 1927 or its inherent authority. Those sanctions require bad faith. Although defense counsel may have been slow to respond to the court’s May 23, 2022 order and to review the court’s practice rules, the record did not show bad faith. Defense counsel explained that the passport had been requested during Lin’s deposition but had not been provided, and that counsel learned of the WeChat messages while preparing Lin for trial testimony.

The court likewise declined to impose Rule 37 sanctions. It concluded that any discovery violation was not willful, that the disclosures had been made with ample time for Chen to prepare for cross-examination, and that Chen had identified no prejudice.

Disposition

The court denied Plaintiff’s motions to exclude and for sanctions. It directed the parties to submit a revised proposed pretrial order, reviewed by counsel for both sides, by noon on June 14, 2022. The court also directed Chen to file all documentary exhibits that he expected to introduce at trial by that deadline and stated that he would not be permitted to offer at trial any exhibit not refiled by the deadline.