*1 Plaintiffs Rearden LLC and Rearden Mova LLC (collectively, “Rearden”) now move to exclude the declaration of third-party witness Darren Hendler that Defendants have submitted in support of their respective motions for summary judgment. ECF No. 258.[1] Separately, Plaintiffs also move to exclude a second declaration by Hendler in support of Defendants’ motion to exclude portions of the declaration of Angela Tinwell. ECF No. 287. The Court will deny both motions.

Plaintiffs’ reasons for seeking the exclusion of Hendler's summary judgment declaration are that “it attaches 52 exhibits”; “[t]he figures and exhibits were not produced in discovery”; and “[a]t no time during or even after summary judgment discovery did [D]efendants ever inform Rearden that they intended to supplement the record with a new declaration and new documents.” ECF No. 258 at 3. While there seems to be no dispute regarding these allegations, Rearden nowhere identifies how Defendants violated either the Federal Rules of Civil Procedure or the Court's orders. Instead, Plaintiffs make various other complaints about the prior course of discovery. For example, although Plaintiffs were able to take Hendler's deposition prior to the filing of his declaration, they complain that it lasted only two hours. But Rearden does not lay the blame for this truncated deposition at Defendants’ feet, nor could they. The deposition lasted that long because that was the duration Rearden requested. See ECF No. 227 at 2 (“We informed DD3's counsel that although the Hendler deposition should be scheduled for half a day, it would likely be two hours or less.”); ECF No. 226 at 2 (“Plaintiffs promise to conclude [the Hendler deposition] in two hours.”).

Rearden also complains that it could not have asked Hendler about the documents he attaches to his declaration because it did not have possession of them at the time of the deposition. But that deficiency also was not of Defendants’ making. Rearden originally subpoenaed documents from Hendler's employer, Digital Domain 3.0, Inc. (“DD3”), but DD3 objected to production on the grounds that “the production files for the films at issue comprised many terabytes of data that were unduly burdensome to produce and not proportional to the needs of the case.” ECF No. 258 at 4. Rearden accepted this objection and did not litigate the issue further. It may seem unfair that Defendants were able to obtain a subset of those documents through informal discovery, but Plaintiffs do not allege that Defendants violated any rule in doing so. See Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 308 F. Supp. 2d 1208, 1214 (W.D. Wash. 2003), aff'd, 372 F.3d 1330 (Fed. Cir. 2004) (denying motion to exclude declaration based on defendant's failure to provide certain discovery responses because “[p]laintiff's remedy for failure to provide discovery is [to] move to compel, not exclude evidence at this stage in the litigation”).

*2 Because the Court finds that Defendants have not violated their discovery obligations, it need not reach the question of remedy. But on that subject, it is worth noting that Rearden is clear that it would not be satisfied with taking Hendler's deposition a second time. ECF No. 258 at 6. Plaintiffs say they would also need an additional production of documents by DD3, as well as the deposition of a member of DD3's finance group. Id. These arguments underscore the extent to which Rearden's real complaint, if any, is with DD3 and not with Defendants.

Rearden also suggests that Defendants’ conduct violated a court order by including Hendler's declaration with their refiled summary judgment motion. Id. at 2, 3. The entirety of the order on which this argument rests is as follows:

ECF No. 187. The order does not address the parties’ rights to submit additional materials with their summary judgment briefing, much less prohibit Defendants from doing so. Moreover, not only does the language of the order not support Rearden's interpretation, but the consequence of adopting that interpretation would be that only Rearden, and not Defendants, could use any material gathered – by formal or informal discovery – during the causal nexus discovery period. The Court is unaware of any precedent for such a restriction, and it is not supported by the record.

Trial courts “are entrusted with ‘particularly wide latitude’ in exercising [their] discretion to impose sanctions” for discovery violations under Rule 37(c). Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017) (quoting Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). But they can only impose such sanctions for a violation of the discovery rules or a court order. See Alexander v. Boeing Co., No. C13-1369 RAJ, 2014 WL 3900574, at *4 n.4 (W.D. Wash. Aug. 11, 2014) (“Plaintiff also seeks to exclude exhibits 191 through 204 because they were not produced in discovery. However, plaintiff has not demonstrated that she requested these types of documents during discovery, and defendant failed to produce them. Accordingly, exclusion of these documents as a discovery sanction for failure to produce the documents is not an available remedy.” (citing Fed. R. Civ. Proc. 37(c)(1)). Here, Rearden has not shown such a violation. Accordingly, its request to sanction Defendants by excluding= Hendler's summary judgment declaration is denied.

Plaintiffs also move to strike a second declaration from Hendler. See ECF No. 287 at 1 (“Mr. Hendler's second declaration should be stricken for all of the same reasons stated in Rearden's October 29, 2020 letter brief in support of its motion to strike the Declaration of Darren Hendler, ECF No. 258.”). Because the only grounds offered in support of that motion are the same as in Rearden's motion to strike Hendler's first declaration, its subsequent motion is also denied.

IT IS SO ORDERED.