Wixon v. Wyndham Resort Dev. Corp.
Wixon v. Wyndham Resort Dev. Corp.
2009 WL 3075652 (N.D. Cal. 2009)
July 17, 2009

Swanson, Edward W.,  Special Master

Exclusion of Evidence
Special Master
Search Terms
Sanctions
Cost Recovery
Attorney Work-Product
Failure to Produce
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Summary
The court found that Wyndham had produced documents after the stipulated deadline, including ESI. The court found that 73 of the 124 documents were timely produced, and 47 were not. The court also found that five late-produced documents were discussed by the experts, but the late production of Document 20 was not particularly prejudicial.
Clarke and Rebecca WIXON, et al., Plaintiffs,
v.
WYNDHAM RESORT DEVELOPMENT CORP., et al., Defendants
No. C 07–2361 JSW
United States District Court, N.D. California
July 17, 2009

Counsel

Elizabeth Cheryl Pritzker, Jonathan Krasne Levine, Girard Gibbs LLP, Daniel Timothy Lebel, San Francisco, CA, James S. Helfrich, Jordan Factor, Gersh & Helfrich, LLP, Denver, CO, for Plaintiffs.
Matthew Gordon Ball, K&L Gates, Jeffrey V. Commisso, Stephen Maxwell Hankins, Schiff Hardin LLP, San Francisco, CA, Judith Helene Ramseyer, Law Offices of Judith H. Ramseyer PLLC, Seattle, WA, Alan William Loeffler, J. Kirk Quillian, William Middleton Droze, Troutman Sanders LLP, Atlanta, GA, for Defendants.
Swanson, Edward W., Special Master

SPECIAL MASTER'S REPORT AND RECOMMENDATION ON PLAINTIFFS' MOTION TO ENFORCE CLASS CERTIFICATION DISCOVERY STIPULATION AND MOTION TO STRIKE

*1 Before the special master is plaintiffs' Motion to Enforce Parties' Class Certification Discovery Stipulation and to Strike Evidence. Having reviewed the record and the parties' papers, having considered the relevant legal authority, and having heard the arguments of counsel, the special master RECOMMENDS that the Court deny plaintiffs' motion to strike, and further RECOMMENDS that the Court order defendant Wyndham Resort Development Corp. (“Wyndham”) to pay 75% of the fees incurred in connection with this motion.
RELEVANT BACKGROUND
Because these motions concern the timing of fact and expert discovery, the special master will set forth the relevant background as to those issues only. This particular discovery dispute appears to have begun in late 2008. On December 31 of that year, plaintiffs' counsel wrote to Judge Zimmerman to request a conference regarding the deadline for Wyndham's production of hard copy and electronic documents. Pritzker Letter (Docket 198), 1–2. Judge Zimmerman ordered the parties to meet and confer, and on January 15 the parties reported they had reached agreement. See Levine Letter, January 15, 2009 (Docket 292–1). In relevant part, the parties' agreement was as follows:
A. Timing of the Production
Wyndham will complete the production of hard copy documents responsive to Plaintiffs' document requests by February 2, 2009. The production of electronically stored information (“ESI”) will be limited at this time to specific search terms and custodians. Wyndham will makes its initial production of ESI on February 2, 2009, limited only by the ability of Wyndham's ESI vendor to process the ESI. To the extent that Wyndham is unable to produce all ESI of February 2, 2009, it will supplement and complete the production by no later than February 16, 2009.
...
B. Scope of the ESI Search
The ESI search will be conducted using the list of search terms previously provided by Plaintiffs' counsel and will be limited to the list of 26 custodians at Wyndham designated by Plaintiffs in their letters of January 9 and 13, 2009.
...
E. Use of Responsive Documents in Class Certification Briefing
Documents and/or ESI responsive to an outstanding discovery request that have not been produced to the requesting party may not be used for purposes of moving for or opposing class certification.
Id. at 1–2. Consistent with the schedule set forth in the January 15 letter, Wyndham produced hard copy documents on February 2 and ESI on February 17.[1]
On April 23 and 24, Wyndham produced roughly 30,000 additional ESI documents. On April 24, plaintiffs filed their motion for class certification.
On April 28, plaintiffs' counsel wrote to Judge Zimmerman and requested a telephonic hearing on grounds that Wyndham's “delayed production violates the parties' stipulated class certification discovery schedule.” Docket 260, 1. Wyndham responded, also via letter to Judge Zimmerman, that this was a “supplemental” production of documents previously caught in a privilege screen, and that the timing of the production did not violate any agreement because the January 15 letter “merely provides for the production of a document prior to its use.” Docket 262, 1. On April 30, Judge Zimmerman issued the following order:
*2 I read the January 15, 2009 stipulated discovery schedule as requiring Wyndham to have completed its ESI production by February 17, 2009, which would have included the production of any documents that were subject to a privilege screen. If Wyndham needed more time to screen and produce documents, it should have asked. Had I been asked, I would never have permitted Wyndham to produce all of the screened documents in bulk, at the very end of the screening process, and on the day that plaintiffs' class certification motion was due. In any event, the parties have agreed that Wyndham shall inform plaintiffs of which of the newly produced documents it intends to use in its opposition to plaintiffs' motion for class certification, by no later than May 6, 2009.
Accordingly, plaintiffs' earlier request that Wyndham be barred from using any of the recently produced documents in the class certification proceeding is DENIED without prejudice to being renewed before Judge White by way of objection to specific documents.
Fourth Discovery Order, April 30, 2009 (Docket 263), 1–2. Judge Zimmerman also ordered Wyndham to produce a privilege log by May 8, 2009. Id.
On May 5, Wyndham identified Dr. Michael Keeley as a defense expert and provided an expert report to plaintiffs.[2]The same day, Wyndham produced approximately 950 pages of documents, which Wyndham explained were either being “produced in connection with Michael C. Keeley's Expert Report Pertaining to Class Certification” or were materials “which may be relied upon by Defendant Wyndham Resort Development Corporation in connection with class certification.” Bushnell Letter, May 5, 2009 (Docket 292–2). On May 6, Wyndham informed plaintiffs that it would not rely the April 23–24 production in opposing plaintiff's motion for class certification except to the extent that production included previously-disclosed documents. Droze Letter, May 6, 2009 (Docket 323–7), 1.
On May 13, approximately one week after receiving Dr. Keeley's report and the accompanying document production, plaintiffs deposed Dr. Keeley.
On May 22, plaintiffs filed the instant motion to enforce the January 15 scheduling stipulation, to strike the Keeley report, and to preclude Wyndham from relying on material produced after February 17 in its opposition to the motion for class certification.
On June 4, plaintiffs provided Wyndham with a rebuttal report by plaintiffs' expert Dr. Russell Lamb, responding to the Keeley Report and the material produced in connection with that report. Pritzker Letter, June 4, 2009 (Docket 323–33).
Following briefing on this motion, the Court ordered plaintiffs to state with specificity which documents were actually at issue in its motion to enforce the January 15 scheduling stipulation. Order re Motion to Enforce, June 18, 2009 (Docket 350), 1. Plaintiffs submitted a list of 124 documents (Docket 351), and Wyndham responded by explaining the timing of the production for each document. See Docket 354–1. On June 29, the Court referred this matter to the special master, and on July 10 the special master heard oral argument on plaintiffs' motion.
DISCUSSION
*3 In order to determine whether Wyndham's disclosures and document productions on May 5 were in violation of the January 15 stipulation, it is necessary first to examine the language of the stipulation and the parties' understandings of its terms. We will then review the documents at issue in this case and Wyndham's explanations of the reasons the documents were produced when they were. Finally, we will discuss whether any late production was harmless or substantially justified.
I. The January 15, 2009 Stipulation
Whatever the parties may have thought when they entered into the January 15 stipulation, they now have starkly different views of what it was intended to accomplish. Plaintiffs claim the principal objective of the stipulation was to set a deadline by which they would receive all documents upon which Wyndham would rely in opposing plaintiffs' motion for class certification. Under the terms of the stipulation, and particularly Paragraph E, which states that “[d]ocuments and/or ESI responsive to an outstanding discovery request that have not been produced to the requesting party may not be used for purposes of moving for or opposing class certification,” plaintiffs claim they understood there would be no documents they were seeing for the first time in connection with Wyndham's expert disclosures. See, e.g., Reply in Support of Motion to Strike (Docket 334) (“Reply”), 3.
Wyndham takes a different view. From its perspective, the principal significance of the stipulation was that it provided a new and more limited approach to the production of electronically stored information (“ESI”). Under the terms of the stipulation, Wyndham understood it would have to produce only ESI located through an analysis of search terms and custodians that plaintiffs agreed to identify. Wyndham focuses on the language in paragraph A that reads “[t]he production of electronically stored information (‘ESI’) will be limited at this time to specific search terms and custodians.” Wyndham argues that documents recovered through this search were the only “responsive” ESI documents to which the deadlines in the stipulation applied; any other ESI documents did not need to be produced by February 17.
The special master has no reason to question the sincerity of counsel regarding their differing interpretations of the stipulation. Indeed, both readings find some support in the language of the stipulation. Plaintiffs' understanding that Wyndham's expert would not rely on documents produced after the stipulation's deadline seems to be in keeping with the spirit of the agreement. Paragraph E explicitly states that documents not produced cannot be used to oppose class certification.[3]
However, the record indicates that plaintiffs were on notice they would be receiving some new documents in connection with Dr. Keeley's report. Plaintiffs were aware that expert discovery was being handled on a separate track from fact discovery. As plaintiffs' counsel stated in a recorded meet and confer session on April 28, 2009, “it was always anticipated that the expert reports and expert discovery would be treated differently. That's why we have a completely separate schedule for that discovery.” Loeffler Decl. in Support of Opp., (Docket 323), ¶ 3 and Exhibit 1. In that same meeting, Wyndham's counsel, arguing that the timing of its supplemental production was not prejudicial, said “as you know, we're producing documents in connection with what our expert will be relying upon, so there's not much difference.” Id. at ¶ 3. Prior to the deadline for disclosure of Wyndham's expert report, plaintiffs wrote to Wyndham's counsel asking them to “[p]lease confirm our agreement that the materials to be produced by Wyndham's expert ... will be arriving at our offices in San Francisco by May 6, 2009.” Id. at ¶ 11 and Exhibit 8. Based on these statements, it appears plaintiffs knew the expert report would be accompanied by various disclosures, and that those disclosures could contain documents not previously produced.
*4 Furthermore, while plaintiffs' reading may be in keeping with the stipulation's spirit, Wyndham's interpretation tracks its precise terms. Paragraph E's cut-off applies only to responsive documents, and “responsive documents” are defined as (a) hard-copy documents responsive to plaintiffs' document requests, and (b) ESI material generated by a search of the electronic databases of specific custodians for documents containing specific terms. Any ESI that was not contained in those custodians' databases or that did not contain those terms was not “responsive” under this reading of the stipulation. While it may be a narrow reading, and, as discussed below, it may have given rise to problems that Wyndham could have brought earlier to the attention of plaintiffs, it is nonetheless a reading that is defensible.
Therefore, the special master finds that the terms of the stipulation did not prohibit Wyndham from relying upon any documents that had not been produced by the February 17 deadline; Wyndham simply could not rely on later-produced documents that were “responsive” as defined by the stipulation.
The issue, then, is whether the documents that Wyndham produced for the first time on May 5 were untimely under the stipulation.
II. Whether Documents were Timely Produced
Wyndham has detailed the reasons it waited until May 5 to produce each of the 124 documents identified by plaintiffs. See Docket 354–1. Wyndham's explanation divides the documents into five categories: (a) documents that were not responsive to discovery requests; (b) documents caught in a privilege screen; (c) documents that were available to plaintiffs from other sources; (d) duplicates of material already produced; and (e) documents that were withheld as attorney work product. The special master will address each category in turn.[4]
A. Documents that were not Responsive to Discovery Requests
Wyndham explained that 53 of the 124 documents were not part of the February 17 production because they were not “responsive” as that term is defined by the stipulation. Specifically, 50 documents were maintained by ESI custodians other than those selected by plaintiffs,[5] and three did not contain any of the ESI search terms selected by plaintiffs.[6]
As set forth above, the special master finds that Wyndham reasonably concluded that the February 17 production deadline applied only to responsive documents, and that responsive ESI documents were only those maintained by plaintiffs' chosen custodians and containing plaintiffs' chosen search terms. Accordingly, Wyndham did not violate the stipulation by waiting to produce these documents until it disclosed its testifying expert.
It appears that some of the ESI documents that were not produced by the February 17 deadline were responsive to plaintiffs' previous discovery requests. Indeed, a large number of the documents provided to Dr. Keeley were excluded from production solely because they were stored in a “shared directory,” and thus apparently were not held by any particular custodian. See discussion at RT 64, et seq.[7] What is not clear is when Wyndham became aware of this problem. Assuming Wyndham knew of it before Dr. Keeley's report was produced, it certainly would have been commendable of Wyndham to inform plaintiffs of the issue and discuss possible solutions. However, in the context of the instant motion, Wyndham was not required to do more than comply with the stipulation, and it should not be sanctioned for failing to take additional steps the stipulation did not require.
B. Documents Previously Withheld as Privileged
*5 Wyndham explained that 34 of the 124 documents had been withheld as privileged. Specifically, 17 ESI documents contained words that triggered Wyndham's vendor to pull them from the production,[8] and 17 hard copy documents were produced after Wyndham's “hard document privilege review.”[9]
As to the first category, counsel for Wyndham explained these documents were not in fact privileged but were pulled from the February 17 production by Wyndham's ESI vendor due to possible privilege claims. RT 76:23–24. It appears these materials are identical in this respect to the 30,000 documents Wyndham produced in late April. However, Wyndham offers no explanation why these were not included with the 30,000 documents. Given that, it is problematic for Wyndham to contend that it was appropriate to produce this material for the first time on May 5. The special master finds the production of these documents untimely.
The second category of documents are those produced as part of the “hard document privilege review.” Counsel for Wyndham explained the timing of the production as follows:
In preparing and finalizing the privilege log which the court ordered us to produce on May 8, there were some documents that had been withheld that we didn't believe were privileged and so they weren't appropriate for a log.
RT 80:19–23. As Wyndham has offered no good cause for its delay in producing these documents, the special master finds that these documents should have been produced on or before February 2 with the other hard copy documents.
C. Documents that were Otherwise Available to Plaintiffs
Wyndham claims that nine of the 124 documents were publicly available and that Wyndham therefore had no duty to produce them to plaintiffs despite their being responsive to an outstanding discovery request.[10] The documents at issue are minutes of meetings of the WorldMark Club's board of directors.
As a general rule, the fact that material is available to the requesting party is insufficient to defeat a discovery request. See St. Paul Reinsurance Co., Ltd. v. Commercial Financial Corp., 198 F.R.D. 508, 514 (N.D.Iowa 2000); Bretana v. International Collection Corp., C 07–05934 JF (HRL), 2008 WL 4334710, *5 (N.D.Cal. Sept. 22, 2008) (“[I]t is generally not a ground for objection that requested documents are equally available from the requesting party's own records.”) (citing St. Paul ). However, even setting aside this principle, the board minutes at issue were not readily available to plaintiffs' counsel. Instead, the minutes were posted online, and the Wixons, as members, could access them. RT 93:1–5. Wyndham cites no case for the proposition that they had no duty to produce these minutes because the documents were available to plaintiffs but not to plaintiffs' counsel. The special master concludes that this material should have been produced by the February 17 deadline.
D. Duplicates of Documents Previously Produced
*6 Wyndham claims that ten documents in the May 5 production had already been produced with different Bates numbers.[11] Plaintiffs disagree with respect to Document 70, a presentation entitled “WorldMark Product Business Model Strategy.” The previously-produced version has the same title but does not include the same information. The special master notes that Document 70 includes two pages not part of the previously-produced presentation: a list of “team members” and an update on a previous meeting. The previously-produced document has several charts that are not included in Document 70. See Exhibits A and B to July 10, 2009 Hearing.
The special master finds that the nine duplicate documents were timely produced. Document 70, on the other hand, should have been produced on or before February 17.
E. Documents Withheld as Attorney Work Product
Wyndham asserts work product protection for 14 of the 124 documents at issue. Of those, eight are documents that Wyndham claims were newly created for purposes of this litigation, and six are similar to documents previously produced but were modified for purposes of this litigation.
1. Definition of Work Product
Rule 26 requires production of all “data or other information” considered by an expert the producing party “may use at trial.” FRCP 26(a)(2). By contrast, a party generally need not disclose such information as to an expert “who is not expected to be called as a witness at trial.” FRCP 26(b)(4)(B). A “majority of courts that have considered the issue” hold that Rule 26 “creates a bright-line rule requiring disclosure of all information provided to testifying experts, including attorney opinion work product.” Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697, 714 (6th Cir.2006) (noting also the “minority view” that “amendments to Rule 26 did not change the pre-amendment rule that attorney opinion work product disclosures to experts were privileged from discovery”).[12]
“The work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), protects ‘from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.’ ” In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management), 357 F.3d 900, 906 (9th Cir.2004) (citation omitted). Special considerations apply when the question is whether a document created for both legal and business purposes is protected work product. The Ninth Circuit employs what is known as the “because of” test for making this determination. This tests asks whether “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” Torf, 357 F.3d at 907 (quoting Wright, Miller, and Marcus, 8 Federal Practice & Procedure § 2024 (2d ed.1994)).
The “because of” standard does not consider whether litigation was a primary or secondary motive behind the creation of a document. Rather, it considers the totality of the circumstances and affords protection when it can fairly be said that the “document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation[.]”
*7 Id. at 908 (quoting United States v. Adlman, 134 F.3d 1194, 1195 (2nd Cir.1998)).
2. Whether Wyndham was Entitled to Assert Work Product Protection
As a preliminary matter, plaintiffs contend the nature of Dr. Keeley's relationship with Wyndham precludes application of work product protection to any document produced on May 5. Plaintiffs point out that Cornerstone's proposed budget for Wyndham included “anticipated professional fees and expenses through the filing of a report by Dr. Keeley.” Opp., 7 (quoting Cornerstone's Proposed Analysis and Budget Regarding Class Certification Issues). Plaintiffs believe Wyndham hired Dr. Keeley to write a report and therefore always knew he would be likely to testify at trial. Accordingly to plaintiffs, Dr. Keeley was therefore a “testifying expert” under Rule 26 ab initio and “the work product protection afforded by Rule 26(b) never attached to the documents and data Wyndham provided to Dr. Keeley.” Id. at 8. Plaintiffs conclude that everything provided to Dr. Keeley was “fact discovery” that should have been produced by February 17.
Plaintiffs' argument suffers from two shortcomings. As a factual matter, the fact hat an estimated budget includes fees for an expert report does not necessarily mean the report will actually be drafted. A client may hire an attorney to handle matters “up to and including trial” even if the client's intention is to settle the case; in the same way, a party may budget for an expert's “fees and expenses through the filing of a report” but never actually demand the written report. Plaintiff's view of Rule 26 would require a party to decide before drafting the retainer agreement—possibly even before learning if the expert's views are favorable to its case—whether it will call the expert at trial. Plaintiffs have cited no precedent for this expansive interpretation of the rule.
Second, even assuming Dr. Keeley was a “testifying expert” under Rule 26 from the moment he was hired, plaintiffs cite no case holding that work product protection would not attach to materials he received. To the contrary, case law indicates that Rule 26 requires disclosure of material provided to an expert despite its work product status, not because the material is unprotected. See, e.g., Regional Airport Authority, 460 F.3d at 714 (finding that Rule 26 mandates “disclosure of all information provided to testifying experts, including attorney opinion work product”).
Thus, contrary to plaintiffs' argument, documents shown to an expert are work product, but they are work product that must be produced. The timing of that production is dictated by Rule 26(a) (2)(B), which specifies that “disclosure must be accompanied by a written report” containing “the data or other information considered by the witness.” Thus, the rules require simultaneous disclosure of the expert's identity and of the bases for his opinion. Because there is no dispute that Wyndham's May 5 disclosure of Dr. Keeley's identity was timely, the special master finds that to the extent the documents produced on May 5 were attorney work product, their production was also timely under the rule.
3. Whether the Documents are Protected Work Product
i. Newly–Created Documents
*8 Wyndham contends that eight of the 124 documents merit work product protection because they were “created at request of counsel” for purposes of this litigation.[13] Plaintiffs contend these were materials held in the ordinary course of business and are not entitled to work product protection.
Document 112 was a source for Dr. Keeley's Exhibit 5, entitled “Percent of Proposed Class Who Made a Bonus Time Reservation from 12/1/2004–3/19/2009.” See Keeley Report (Docket 273–7), 1. This document appears to have been created in order to address a specific argument raised by plaintiffs. See Keeley Report (Docket 273–1), 37 (“The demand for Bonus Time reservations is not as widespread as Plaintiffs suggest.... See Exhibit 5.”). The special master concludes this document would not have been created in this form but for the prospect of this litigation.
Document 113 is entitled “Wixon Class List—Active Owners Updated (12.31.08)” and was the source for a number of Dr. Keeley's exhibits. Wyndham claims this document was created “solely for use in this litigation and [was] amended as Plaintiffs changed the class definition.” Opp., 6. Plaintiffs apparently do not contest this characterization. RT 101:15–19 (“With the exception of the class list, these documents look like Wyndham business records[.]”). Again, it appears this document was created because of this litigation.
Document 114 is a spreadsheet that documents “Out of Network Benefits Purchased with Vacation Credits” as to “Class List owners only.” It was a source for Exhibit 2, entitled “Proposed Class Members Who Elected Wyndham Out–of–Network Benefits.” Because this document is tailored to this litigation—evidenced by the fact that it addresses only prospective class members—the special master finds it was properly withheld as attorney work product.
The remaining four newly-created documents are more difficult to analyze, because Dr. Keeley did not single them out as sources for specific exhibits. Nor do all of these materials appear to be tailored to potential class members—for example, while Document 120 refers to a “Wixon list,” Document 100 simply contains information on “Gross VOI Sales” for 2006–2008. Nonetheless, the special master credits Wyndham's explanation that these materials were created for purposes of this litigation. The special master is informed in making this determination by the nature of the other newly created documents, described above, and by the fact that plaintiffs do not contest these were new documents but argue only they are similar to existing business records at Wyndham. Despite any similarity to existing documents, because these materials were created at counsel's direction in the context of this litigation and are different in some respects from other existing business records, they fall under the protection of the work product doctrine.
In sum, the special master finds the newly created documents “would not have been created in substantially similar form but for the prospect” of this litigation and were therefore timely produced. Torf, 357 F.3d at 908.
ii. Updated/Modified Documents
*9 The remaining six documents Wyndham withheld on basis of attorney work product were not newly created but were either updated or modified at counsel's request.[14] Counsel for Wyndham explained these documents contain information available from other sources but compiled in a different manner:
What we wanted to do on an electronic basis is compile the information that's otherwise available and manipulate it for the purpose of the expert's analysis, that is, include some other columns, include some other data and use a format that our expert and us could most easily utilize.
RT 50:7–12. Wyndham contends that these newly configured data sets are work product under Sporck v. Peil, 759 F.2d 312, 315 (3rd Cir.1985).
In Sporck, defendants produced “hundreds of thousands of documents” in response to discovery requests; prior to defendant Sporck's deposition, his counsel selected a number of those documents for him to review. Sporck, 759 F.2d at 313. None of the documents were themselves work product and all had been made available to plaintiff. The question was whether plaintiff was entitled to learn which documents defense counsel had selected to review, in other words, “whether the selection process of defense counsel in grouping certain documents together out of the thousands produced in this litigation is work product.” Id. at 315. The court held that it was:
We believe that the selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product.... “In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research.”
Id. at 316 (quoting James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D.Del.1982)). Subsequent decisions have emphasized that application of the Sporck doctrine “depends upon the existence of a real, rather than speculative, concern that the thought processes of [ ] counsel in relation to pending or anticipated litigation would be exposed” if the selection process were revealed. Gould Inc. v. Mitsui Min. & Smelting Co., Ltd., 825 F.2d 676, 680 (2d Cir.1987).
The special master finds that Sporck and its progeny apply to some of the data produced at request of counsel in this case. The newly-added data in Documents 109–111 concerns “Fun Time,” indicating that the documents were created specifically to address allegations in this litigation. See, e.g., Third Amended Complaint (Docket 147), ¶ 45 (“Fun Time was implemented solely to benefit Wyndham at the expense of existing WorldMark members.”). These three documents contain attorney work product and were timely produced.
However, the data in the three remaining documents do not appear to reflect any mental processes of counsel. Documents 108 and 115 are “credit occupancy reports,” which counsel for Wyndham explained is a “business record” created on a quarterly basis by Wyndham. RT 47:10–14. With respect to document 108 specifically, counsel acknowledged that the “modifications and revisions to that, frankly, were not significant[.]” Id. at 47:17–18. Nor does a comparison of these documents to the prior versions produced by Wyndham indicate that attorney thought processes are revealed in the new production—to the contrary, the documents appear largely identical. The special master finds these documents would have existed in substantially similar form regardless of this litigation and are therefore not work product.
*10 Similarly, Document 104 is a “Credit Reconciliation Report” for the fourth quarter of 2008. Counsel for Wyndham explained this document includes information on “each unit that's added, the type of unit, the number of credits attached to that unit that are registered, the number of weeks, and the very detailed information about each unit that is added historically in the WorldMark system.” RT 49:8–12. Counsel also stated that this document was, at least at one time, “filed with the State of California” (id. at 49:6–7), and that the information contained therein was readily available to plaintiffs from other sources. Id. at 49:15–23. The previously-produced version appears to include all the same data fields as the new document. The special master concludes that this information was kept in the ordinary course of business and that this document would have existed in substantially similar form regardless of this litigation.
F. Summary
To recap, of the 124 documents, four are not at issue because they are either duplicates or were not available on February 17, as noted in footnote 4, supra. Of the 120 remaining documents, the special master finds 73 were timely produced: the 53 non-responsive ESI documents; 9 of the previously-produced documents; the 8 newly-created work product documents; and 3 of the modified work product documents.
The special master finds the following 47 documents should have been before May 5: the 17 hard copy documents that were produced after Wyndham's privilege review; the 17 documents caught in the electronic privilege screen; the 9 sets of board meeting minutes; Document 70 (which was not a duplicate of a previously-produced document); and the remaining 3 modified documents withheld as work product.
III. Whether the Keeley Report Should be Stricken
In light of Wyndham's late production, plaintiffs seek an order striking the Keeley report in its entirety and striking any reference to the report in Wyndham's briefing on class certification. Plaintiffs move both under Rule 37(c) and under the Court's inherent powers.
A. Rule 37(c) Sanctions
Rule 37 provides in pertinent part as follows:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
FED. R. CIV. P. 37(c)(1). Plaintiffs argue that Wyndham failed to produce documents as required by Rule 26(e), which requires timely supplementation of discovery responses.
As plaintiffs correctly note, Rule 37 sanctions are self-executing and automatic. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001). Exclusion is appropriate even in the absence of “bad faith or willfulness.” Id. The Ninth Circuit has acknowledged the severity of this rule but points out that two exceptions “ameliorate the harshness”—sanctions do not attach where the failure to disclose was either “substantially justified” or “harmless.” Id. The party facing sanctions bears the burden of proving the violation was justified or harmless. Id. at 1107.
*11 While Rule 37 sanctions are self-executing, the determination whether the underlying discovery violation was harmless or justified “is entrusted to the broad discretion of the district court.” David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.2003) (citation omitted). Contrary to Wyndham's suggestion, the Ninth Circuit does not appear to have established explicit factors to guide the district court's decision.[15] However, the Seventh Circuit has identified the following relevant factors:
(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date.
Id. at 857 (citations omitted); see also Wong v. Regents of University of California, 410 F.3d 1052, 1062 (9th Cir.2005) (considering “[d]isruption to the schedule of the court and other parties” in ruling that failure to disclose expert witness prior to discovery cut-off was not “harmless” under Rule 37(c)(1)). The special master finds the David factors a useful guide.
1. Whether the Late Production was Harmless
Turning to the first David factor—prejudice or surprise occasioned by the late production—the special master believes plaintiffs are genuine in expressing surprise. They had reason to believe that all documents that Dr. Keeley would rely on would have been produced by February 17. In their view, that is what the stipulation provided, and Wyndham gave them no notice they should have expected otherwise.
The issue of prejudice, however, is more complicated. Plaintiffs are incorrect in arguing they were entitled to earlier production of all 124 documents. As discussed above, only a subset of those documents was not timely produced under the stipulation. To determine whether the failure to produce these 47 documents in a timely fashion prejudiced plaintiffs, it is instructive to look at how significant the material was to Drs. Keeley and Lamb.
As an initial matter, the list of documents that Dr. Keeley considered in forming his opinions runs 15 pages; obviously the 47 late-produced documents are only a small portion of those materials. Moreover, Dr. Keeley relied on only nine of the late-produced documents in creating exhibits,[16] and his report does not explicitly mention 37 of the remaining 38.[17]
That is not to say, however, that Dr. Keeley did not consider these materials. As plaintiffs correctly point out, even if the documents in question were not specifically discussed in the report, there is no way now to determine what Dr. Keeley might have concluded had he not reviewed the late-produced documents when drafting his report. All that can be said from reviewing the report is that these do not appear to be the central documents on which Dr. Keeley based his conclusions.
Dr. Lamb's rebuttal sheds more light on the question of prejudice. Dr. Lamb notes that “many of the materials Dr. Keeley reviewed and relied upon and which form the basis of the analysis contained in his report were not provided to me until after my Expert Report was submitted and my deposition was completed.” Lamb Rebuttal Report (Docket 337–1), ¶ 5. Dr. Lamb did refer to material relied on by Dr. Keeley's report (see, e.g., id. at ¶ 30), but he specifically cited only 9 of the 124 documents on plaintiffs' list, and only five of the documents the special master finds were untimely produced.[18] Among those were several of the documents that Dr. Keeley cited as basis for his exhibits, demonstrating that plaintiffs were not deprived of the opportunity to address the late-produced information.[19]
*12 Moreover, Dr. Lamb does not indicate that the documents produced in connection with Dr. Keeley's report had any bearing on his analysis. To the contrary, Dr. Lamb writes:
There is nothing in Dr. Keeley's report, the materials he relied upon in preparing that report, or in his deposition testimony that leads me to alter the opinions expressed in my Expert Report. Indeed, some of Dr. Keeley's analysis and recently-produced materials relied upon by him support my earlier conclusions in this matter, as described below.
Id. at ¶ 4. Thus, in Dr. Lamb's estimation, the late-produced materials did not undermine his report. They did apparently did deprive him of some material he could have used to support his earlier conclusions, but given that Dr. Lamb had the opportunity to review the material and include it in his rebuttal report, that delay would not seem to have caused plaintiffs prejudice.
Notwithstanding Dr. Lamb's statements and limited use of the documents in question, plaintiffs have speculated there may have been some prejudice that cannot now be determined: Dr. Keeley might have reached a different conclusion had he not been able to see the late-produced documents, or Dr. Lamb might not have needed to write a rebuttal report at further cost to plaintiffs. While that is possible, it is no more than speculation. And given the small number of late-produced documents, and the relatively insignificant role that they appear to have played in both Dr. Lamb and Dr. Keeley's reports, it is speculation that is not supported by the evidence. Therefore, the special master finds the late production did not prejudice plaintiffs.
While that is likely sufficient for the analysis under Rule 37, the special master will address the other factors identified by the Seventh Circuit in David. The second factor—the ability of the party to cure the prejudice—also supports a finding of harmlessness. Plaintiffs had five weeks to respond to Dr. Keeley's report and the documents cited therein and were able to file a rebuttal addressing late-produced material that was germane to the class certification motion.
The third factor concerns the likelihood of disrupting trial and the court's schedule. Because the Court continued the hearing date on its own motion—and at least not explicitly because of the late production—the parties were able to fully brief the class certification motion and fully address Dr. Keeley's report according to the Court's schedule. There does not appear to be any likelihood of disruption.
Next, the special master does not find that Wyndham acted in bad faith. Wyndham's interpretation of the January 15 stipulation was reasonable, and the special master cannot find Wyndham's decision to limit its document production according to its understanding of that agreement was in bad faith. Although Wyndham did in some instances fail to produce documents timely, given the large volume of the production overall and the relatively small number of late-produced material, the special master does not agree with plaintiffs that Wyndham “deliberately and repeatedly delayed its production ... so as to limit the ability of Plaintiffs and their expert to respond.” Plaintiffs' Motion to Strike (Docket 312), 13.
*13 Finally, the special master notes that the late production here was less extensive than in Yeti and other cases cited by plaintiffs where exclusion was deemed an appropriate sanction. Those cases concerned failures to timely produce an entire expert report, while here the late production was only of certain documents considered in connection with an otherwise timely-disclosed report. See Yeti, 259 F.3d at 1106 (expert report provided two and a half years after close of discovery); Jarritos, Inc. v. Los Jarritos, C 05–2380 JSW, 2007 WL 1302506 (N.D.Cal. May 2, 2007) (late production of expert reports); Laser Design Intern., LLC v. BJ Crystal, Inc., C 03–1179 JSW, 2007 WL 735763, *1 (N.D.Cal. Mar.7, 2007) (late production of expert's declaration).
2. Whether the Late Production was Substantially Justified
In addition to concluding that the late of production of 30 of the hundreds of documents relied upon by Dr. Keeley was harmless, the special master also finds it was largely justified. First, with respect to the documents claimed as work product, while the special master disagrees with some of Wyndham's conclusions, Wyndham did have a good faith basis for withholding the materials it did.
As to the remaining 44 documents, there was no good reason for the timing of their production. The documents were responsive and non-privileged, and they should have been produced earlier. However, the late production of these documents must be considered in the context of the enormous volume of the document production in this case, which has run to hundreds of thousands of hard copy and ESI documents. Having considered the filings and heard the arguments of counsel, the special master believes that the late production was the result of understandable oversight rather than any attempt to deprive plaintiffs of relevant information.
B. Inherent Power Sanctions
Plaintiffs also request the Court strike the Keeley report under its inherent power. A court may impose inherent power sanctions only if it “specifically finds bad faith or conduct tantamount to bad faith.” Fink v. Gomez, 239 F.3d 989, 993–94 (9th Cir.2001). As set forth above, the special master does not find that Wyndham acted in bad faith.
C. Allocation of Fees
Finally, the order appointing the special master provides that fees may be allocated according to “the fault of one or both parties.” Docket 360, 2. Although Wyndham's late production was largely justifiable and did not unduly prejudice plaintiffs' ability to brief their motion for class certification, it did occasion substantial expense to plaintiffs. Had Wyndham not been tardy in producing some of the documents on which its expert relied, plaintiffs would have had no basis for bringing this motion. It is only after this fairly exhaustive analysis that it can be determined that Wyndham's tardiness does not warrant the penalty that plaintiffs seek. In light of Wyndham's failure to timely produce documents and thus comply with the January 15 stipulation, the special master recommends that 75% of his fees and expenses incurred in drafting this report and recommendation be allocated to Wyndham.
CONCLUSION
*14 Based on the foregoing, the special master RECOMMENDS that the Court decline to strike the Keeley report and decline to strike those portions of the class certification briefing that rely on the Keeley report. The special master further RECOMMENDS that 75% of his fees and expenses be charged to Wyndham.

Footnotes

The agreed-upon deadline of February 16 was a holiday and production was therefore made the following day. See Wyndham's Response to Plaintiffs' List of Documents (Docket 354), 1n.2. The special master will refer to February 17 as the relevant production deadline.
Appendix C to the Keeley report lists the “Documents Considered by Michael C. Keeley, Ph.D.” Keeley Report (Docket 273–5), 2.
The special master rejects Wyndham's argument that “[a]bsent from [Paragraph E of this agreement] is any date by which production must be made.” Opposition to Motion to Strike (Docket 322) (“Opp.”), 11. Paragraph E does not include an explicit cut-off date, but it is clear from a plain reading of the stipulation that Paragraph E is to be read in conjunction with the rest of the agreement and therefore incorporates the cut-off dates in Paragraph A.
In addition, three documents were duplicates (Documents 34 and 36 are the same, Documents 52 and 121 are the same, and Documents 112 and 122 are the same), and one (Document 123) did not exist as of February 17. (This recommendation employs the document numbers assigned in plaintiffs' List of Documents at Issue (Docket 351).)
Documents 1–5, 7–19, 23, 25–33, 35, 37, 38, 41–51, 55, 56, 58, 116–119, and 124. Document 124 was listed on Wyndham's filing as not containing plaintiffs' chosen ESI search terms, but at the hearing counsel clarified that it was held by a different custodian. RT 89:16–20.
Documents 90, 102, and 103.
RT refers to the Reporter's Transcript of Proceedings Before Edward W. Swanson, Special Master, on July 10, 2009.
Documents 6, 20–22, 24, 34, 39, 40, 52–54, 57, 59, 60, 61, 71, 72, and 101.
Documents 73–89.
Documents 91–99.
Documents 60 and 62–70. Document 60 was not listed on Wyndham's filing but was added to the list of previously-produced material at the hearing. RT 88:20.
The parties are in agreement that attorney work product provided to an expert must be disclosed to the opposing party. While the Ninth Circuit does not appear to have decided the issue, unreported cases from this district—and previous decisions in this case—have also adopted this view. See S.E.C. v. Reyes, 2007 WL 963422, *1 (N.D.Cal. March 30, 2007); Judge Zimmerman's order of July 7, 2009 (Docket 362) (citing Reyes ).
Documents 100, 105–107, 112–114, and 120.
Documents 104, 108–111, and 115.
Wyndham argues that exclusion is not appropriate under the five-factor test in Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir.1990). Opp, 8. However, that case addresses “whether a dismissal or default is appropriate as a Rule 37 sanction.” Wanderer, 910 F.2d at 656. Where the requested sanction is exclusion of expert testimony rather than dismissal or default, Yeti controls. See Toomey v. Nextel Communications, Inc., C 03–2887 MMC, 2004 WL 5512967, *4 (N.D.Cal. Sept.23, 2004) (Wanderer test is “used to review whether a dismissal or default is appropriate as a Rule 37 sanction” while Yeti applies to cases concerning “exclusion of expert testimony pursuant to Rule 37(c)(1)”) (citations and internal brackets omitted).
Documents 21, 34, 39, 40, 54, 57, 104, 108, and 115.
The exception is Document 20, a presentation on pricing strategy cited for the proposition that “Wyndham will only add a new resort to the system if it expects it to be profitable for Wyndham and if it expects WorldMark members to find it highly desirable.” Dr. Keeley also cites as evidence for this assertion the deposition of Scott Grey and Mr. Grey's declaration in opposition to the motion for class certification. See Keeley Report at 8, n. 17 (Docket 273–1). Given that the late-produced document is only one source for this piece of information, it appears the late production of this document was not particularly prejudicial.
The five late-produced documents were Documents 53, 57, 104, 108, and 115.
Drs. Keeley and Lamb both specifically discussed Documents 57, 104, 108, and 115.