Goolden v. Wardak

Background

Hamed Wardak moved for sanctions under Rules 26 and 37 of the Federal Rules of Civil Procedure based on Sarah Goolden’s late production of an approximately 28-minute recording. The recording captured a July 8, 2018 conversation between Goolden and Wardak, about one day after the alleged sexual assault underlying Goolden’s claims. Wardak requested exclusion of the recording, exclusion of Goolden’s claims, exclusion of his deposition testimony, a prohibition on another deposition of him, and attorneys’ fees and costs.

Wardak served document requests in February 2021 that covered communications concerning him and defined documents to include audio and video recordings. Goolden produced the recording on June 28, 2022, the morning fact discovery was scheduled to close, after Wardak’s first day of deposition. Goolden later testified that she had stored the recording on an old iPhone, did not realize she still possessed it, and found it only after Wardak’s deposition testimony prompted her to search the phone. A forensic expert concluded that the old phone had not been used after October 2020.

Legal standard

Rule 26 requires a party to timely supplement or correct a discovery response when it learns that the response is materially incomplete or incorrect. Rule 37 permits sanctions for an untimely disclosure, including excluding the evidence or ordering payment of reasonable expenses. The court explained that it had discretion to impose less severe sanctions than excluding evidence.

To establish a basis for sanctions, Wardak had to show that Goolden had a duty to produce the recording, acted with a culpable state of mind, and possessed evidence relevant to a claim or defense. The court found that negligence was enough to satisfy the culpable-state-of-mind requirement. In deciding whether to exclude evidence, the court applied the factors concerning the reason for the delay, the evidence’s importance, prejudice to the opposing party, and the possibility of a continuance.

Court’s analysis

The court found that Goolden possessed the recording during discovery and that the document requests required its production. It concluded that the disclosure was untimely and that Goolden’s negligence supported sanctions.

The court nevertheless declined to impose the harsh sanctions Wardak requested. It found Goolden’s explanation for the delay credible because she did not realize that the old phone and recording were still in her possession. The recording was important because credibility was central to the case and the recording related to Goolden’s claims and Wardak’s counterclaim. The court also found that Wardak had not shown the kind of prejudice that justified excluding the evidence: he participated in the recorded conversation, the recording did not change Goolden’s theory of the case, and he had 22 months to review it and an opportunity to question Goolden about it. The court concluded that any additional costs could be addressed through a fee award rather than evidence preclusion.

Disposition

The motion was DENIED to the extent it sought preclusion of the recording, preclusion of Goolden’s claims, and preclusion of another deposition of Wardak. It was GRANTED to the extent it sought preclusion of Wardak’s June 27, 2022 deposition. Wardak’s deposition was ordered to be redone in its entirety. The request for attorneys’ fees and costs was GRANTED, and Goolden was ordered to pay Wardak’s reasonable attorneys’ fees and costs as described in the opinion.