*1 Before the Court is SAFE's Emergency Rule 37 Discovery Motion Related to Alaska Attorney General Information at Docket 612. The motion is fully briefed.[1] Oral argument was not requested and was not necessary to the Court's decision.

During discovery, SAFE sought “any complaints filed against [Alarm Protection] with the Alaska Attorney General.”[2] Alarm Protection indicated in March 2016 that “after a diligent search” it did not find any responsive documents.[3] In support of its opposition to SAFE's motion, Alarm Protection submitted a “declaration” that indicates it was signed “with permission” of Alarm Protection's general counsel, Adam Christian.[4] That “declaration” purports to describe the “diligent search” Alarm Protection performed in March 2016. According to this document, these types of files were once managed by one employee “through approximately Spring of 2015.” That employee allegedly no longer worked at Alarm Protection at the time of SAFE's discovery request, and Mr. Christian was “unsure of the organization of her files.” To comply with the discovery request (according to the “declaration”) Alarm Protection therefore “searched through the folders” in that employee's work files and found no responsive documents.[5] Fact discovery closed May 31, 2016, without Alarm Protection having produced any document responsive to the request.

But in February 2017, SAFE obtained copies of several “complaints filed against [Alarm Protection] with the Alaska Attorney General” that were produced by Alarm Protection to a different litigant in a different case.[6] SAFE notified Alarm Protection of the inconsistency between its production in that case and its discovery responses in this case, and sought any additional responsive documents.[7]

*2 Alarm Protection now maintains that in the time since its initial response to SAFE's request in March 2016, Alarm Protection updated its filing system in a manner that provides improved search capabilities.[8] Thus, Alarm Protection claims, when Mr. Christian directed a new search on February 16, 2017, he recovered many documents that were responsive to SAFE's initial request.[9] Alarm Protection produced those and many related documents to SAFE on February 21 and 22, 2017.[10]

SAFE asks the Court to sanction Alarm Protection for its failure to provide these documents in response to SAFE's request for production in March 2016.[11] SAFE seeks to have the recently produced documents admitted as evidence in the trial, without regard to any evidentiary objections by Alarm Protection. SAFE also seeks admission over any objection of an audio recording related to Terry Jesclard.[12]

Alarm Protection contends that no sanctions are appropriate because its initial efforts to respond to the request for production were diligent. Furthermore, Alarm Protection asserts, as soon as SAFE alerted Alarm Protection to the oversight, Alarm Protection “immediately produced [the documents] as well as numerous other materials that were related to those documents but outside the scope of the discovery request.”[13] SAFE's requested sanction, in Alarm Protection's view, is inconsistent with “justice.”[14]

The Court is not persuaded that Alarm Protection's search in March 2016 even as described in Alarm Protection's recent filing was reasonably calculated to recover the responsive information. Mr. Christian must have known about these complaints—after all, he responded to at least one of the Attorney General's letters.[15] And certainly Alarm Protection should have updated its responses immediately once it discovered responsive documents in relation to the separate case. Quite simply, Alarm Protection violated its discovery obligations.

But neither is the Court persuaded that SAFE's proposed sanction is appropriate. The scope of discovery is far broader than the test for admissibility at trial,[16] and the Court will not burden the jury with marginal evidence as a sanction. However, the Court does believe some sanction is appropriate, in order to remedy the prejudice to SAFE from Alarm Protection's late disclosure.

*3 The Court believes an adequate remedy will be to deem the materials authentic and permit SAFE to add them to its trial exhibit list. The Court will not deem the materials to be admitted at this time. Alarm Protection has waived many objections to the materials, but has reserved the right to make certain objections.[17] Based on its review at this time, the Court expects to admit all of these materials. The Court believes the materials to be relevant, does not find them unduly prejudicial, and finds that they might be put to use as non-hearsay, such as to show notice. Furthermore, it would appear that the letters from the Attorney General fall within Rule 803(8) as records of a public office. And the letters from Alarm Protection in response are statements of a party opponent under Rule 801(d)(2).

However, the Court's calculus with regard to the materials' admissibility may change in light of the evidence presented at trial. The Court will therefore permit Alarm Protection to object on the basis of Evidence Rules 401, 403, and (solely with respect to the Attorney General's letters) 801.[18]

The Court will also award SAFE some of its fees and costs related to this discovery dispute. In light of the fact that these documents were in Alarm Protection's control but Alarm Protection failed to timely produce these documents in response to SAFE's valid discovery request, the Court will award SAFE its fees and costs incurred in ultimately obtaining these materials. However, because SAFE failed to meet-and-confer with regard to this motion, and did not file a good-faith certification, the Court will not award SAFE any fees or costs associated with briefing this motion (or its earlier related motion at Docket 601).

Therefore, the Court GRANTS SAFE's Motion at Docket 612 as follows:

DATED this 3rd day of March, 2017 at Anchorage, Alaska.