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Goldtooth v. W. Sugar Coop.

2024 WL 5265286 (D. Neb. 2024)

December 11, 2024

Nelson, Michael D., United States Magistrate Judge

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Summary

The court found that Western Sugar did not violate disclosure rules for failing to disclose daily reports created by their consultant, Suhr, until specifically requested by DSI. The court also noted the importance of electronic stored information (ESI) in the case and the need for parties to be diligent in their disclosure and production of such information.

Additional Decisions

JAIME GOLDTOOTH, as Guardian and Conservator for the Estate of Cody Goldtooth, the protected person, and ZURICH AMERICAN INSURANCE COMPANY, Plaintiffs,
v.
THE WESTERN SUGAR COOPERATIVE, Defendant and Third-Party Plaintiff,
v.
DSI MECHANICAL, LLC, Third-Party Defendants

8:20CV113

United States District Court, D. Nebraska

Filed: December 11, 2024

Nelson, Michael D., United States Magistrate Judge

ORDER

*1 This matter comes before the Court on the Motion for Sanctions (Filing No. 151) filed by Third-Party Defendant, DSI Mechanical, LLC (“DSI”), against Wester Sugar Cooperative (“Western Sugar”). DSI contends Western Sugar failed to fully and accurately disclose a key witness and over a thousand pages of his daily reports dated between March 14, 2016, to September 10, 2016, detailing the worksite where Plaintiff's accident and injury occurred. Because these disclosures were not made until March 2024, after years of discovery, DSI requests that the Court “either dismiss Western Sugar's claim against DSI with prejudice, or render a default judgment against it, or strike its Third-Party Complaint” as “DSI has been deprived of the ability to fully defend itself against Western Sugar's claims[.]” In the alternative, DSI “requests entry of a new scheduling order to allow DSI additional time to conduct the necessary discovery, and order Western Sugar to pay all attorney's fees and costs that DSI incurs.” (Filing No. 153 at pp. 15-16).

BACKGROUND

As summarized by Chief Judge Rossiter in his Memorandum and Order (Filing No. 250), Western Sugar is a cooperative of sugar-beet growers that owns and operates sugar-beet processing plants. Starting in 2015, Western Sugar sought to expand two of its facilities, including its processing plant in Scottsbluff, Nebraska. Western Sugar hired several contractors for the expansion project, including DSI. On March 29, 2016, Western Sugar and DSI first entered into an agreement for DSI to perform work at the plant, primarily to complete demolition of the plant's slicer, drum filter, and second carbonation filter area. Around the same time, Western Sugar also hired Paul Reed Construction (“Paul Reed”) to demolish the third floor of the plant. Chuck Gibbs (“Gibbs”), a Western Sugar maintenance manager, provided Paul Reed employees with permission to cut a hole in the floor of the second level to remove debris. After Paul Reed completed its work a few days later, Paul Reed superintendent Timothy Twombly (“Twombly”) spoke with Gibbs about filling the hole. Gibbs decided to wait to fill the hole, thinking it could be useful for others working on the project. When the Paul Reed crew left the project they covered the hole with a piece of plywood with the word “hole” written on it.

In July 2016, DSI hired Cody Goldtooth (“Cody”) as an ironworker. On August 3, 2016, Cody was working at the plant when a DSI foreman noticed welding sparks coming from the floors above that could possibly damage the conveyor DSI was installing. According to Cody, the DSI foreman told him to find plywood to cover the conveyor. Cody ventured to the second floor and came across the board placed over the hole made by Paul Reed. As Cody tried to move the plywood, he fell through the hole, landing on the floor eighteen feet below and sustaining serious injuries. Cody filed this lawsuit against Western Sugar on March 25, 2020, alleging his accident was due to Western Sugar's alleged negligence, failure to keep a safe premises, and failure to warn him about the hole. Western Sugar in turn field suit against DSI, maintaining DSI has a duty to indemnify and defend Western Sugar under their agreement. The Court recently granted Western Sugar's motion for partial summary judgment, concluding the agreement's indemnification clause is valid and enforceable, and that a jury must weigh the evidence to determine the extent of DSI's negligence. (Filing No. 250).

*2 The present motion arises out of Western Sugar's disclosures regarding Mark Suhr (“Suhr”), a consultant Western Sugar had hired to serve as the construction manager at the plant during the time of relevant events at issue in this lawsuit. Western Sugar served initial disclosures pursuant to Fed. R. Civ. P. 26(a) on March 5, 2021, identifying 29 potential witnesses, including Suhr, whom Western Sugar only identified as a “Sugar Technologist” who “may have information about the events immediately after [Cody's] fall.” (Filing No. 154-8).

Plaintiff began deposing Western Sugar employees in the fall of 2022. Western Sugar asserts that during depositions, “Suhr's role in the expansion project was fully explored,” pointing to testimony from Michael Skeans (“Skeans”), Western Sugar's Vice President of Operations who oversaw the expansion project, in which Skeans testified Suhr was among those “in charge” of the expansion project and was on site “all the time,” that Suhr was “hired as a consultant on the overall project,” and that Suhr was involved in the decisions for which contractors to hire, and did daily walk throughs with the contractors and coordinated their activities. (Filing No. 164 at p. 4; Filing No. 154-1; Filing No. 154-2).

On October 18, 2022, Western Sugar provided supplemental responses to DSI's Requests for Production of Documents (“RFPs”), producing materials related to OSHA's investigation of Cody's accident, which included a statement from Suhr relating to Cody's accident. Western Sugar also produced a daily timeline of work performed by DSI between March 29, 2016, and August 3, 2016. (Filing No. 154-10).

On January 24, 2024, Western Sugar provided expert witness disclosures, identifying Suhr as a non-retained expert “in the area of construction projects involving multiple contractors at one location, and in particular, the construction and modification of sugar beet processing plants.” Western Sugar's expert disclosure states Suhr “has been retained as a construction consultant to Western Sugar from time to time on various construction projects at facilities owned by Western Sugar,” and that “He was engaged in the construction project that took place at Western Sugar's Scottsbluff, Nebraska facility during the spring and summer of 2016.” Western Sugar stated Suhr's expected testimony would be that “it is customary in the industry to have no general contractor for projects such as the construction project that took place in Scottsbluff, Nebraska in the spring and summer of 2016,” and that “Western Sugar Cooperative personnel have sufficient training, experience, and expertise to undertake a construction project such as the one that took place at Western Sugar's Scottsbluff, Nebraska facility during the spring and summer of 2016 without a general contractor, particularly with the involvement of a consultant such as himself.” (Filing No. 154-11).

On March 21, 2024, Plaintiff's counsel requested Suhr's daily notes and records in advance of Suhr's deposition. Western Sugar produced Suhr's daily reports on March 22, 2024. (Filing No. 154-13). These daily reports are located at Filing Nos. 156-1 through 156-5. DSI asserts this production consisted of “1,470 pages of daily reports that detail all of the work done each day and that contain hundreds of photographs, including photographs of DSI's work area and the separate area where Plaintiff's accident occurred,” none of which Western Sugar had provided during the course of the previous years of discovery. DSI also states these daily reports “revealed that DSI and Plaintiff's work at the time of the accident was governed by a different contract than the one on which Western Sugar's claims are based.” (Filing No. 153 at p. 2).

*3 Western Sugar disagrees with DSI's claimed significance of these daily reports and DSI's representations about their content. Western Sugar states, “There are no photographs of the hole through which [Cody] fell, of the hole covering, or of the area where the hole was located. Nor are there any photographs that identify the area where DSI was working on the day of [Cody]’s accident, or any other day” contained within the reports. Western Sugar states that the “only mention of [Cody]’s accident is found in the daily report for August 3, 2016,” which was previously produced to DSI on October 28, 2022. (Filing No. 164 at p. 5).

DSI filed the instant motion for sanctions against Western Sugar in July 2024. DSI contends Western Sugar misleadingly described Suhr as only a “Sugar Technologist” in its initial disclosures, and failed to produce over a thousand pages of his daily reports dated between March 14, 2016, to September 10, 2016, detailing the worksite where Cody's accident and injury occurred. DSI's motion is premised upon either a violation of Western Sugar's mandatory disclosure obligations under Rule 26(a), a Rule 34 discovery violation, or the Court's inherent power to manage proceedings and parties before it. (Filing No. 153). After the motion was fully briefed, the Court held oral argument with counsel on December 9, 2024, regarding their respective positions. (Filing No. 252).

ANALYSIS

Violations of Rule 26 or Rule 34 of the Federal Rules of Civil Procedure can give rise to sanctions under Rule 37. Rule 37(c)(1) provides that when a party fails to comply with the disclosure requirements in 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). Rule 37(c)(1) further provides that “In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). These include:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part; [or]
(vi) rendering a default judgment against the disobedient party;

Fed. R. Civ. P. 37(c)(1).

Under Fed. R. Civ. P. 37(d)(1)(A)(ii), the court may also order sanctions where “a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written responses.” As with a violation of Rule 26, the types of sanctions available include those under Rule 37(b)(2)(A)(i)-(vi). The purpose of sanctions under Rule 37(c) is “to deter abuse and compensate the opposing party for ‘all expenses, whenever incurred, that would not have been sustained had the opponent conducted itself properly.’ ” Johnson Int'l Co. v. Jackson Nat. Life Ins. Co., 19 F.3d 431, 439 n.10 (8th Cir. 1994) (citation omitted).

Courts deciding whether to preclude a party from using late-disclosed information or to impose some other sanction pursuant to Rule 37(c)(1) consider several factors, including: “(1) how important the excluded material is to the case; (2) the proffered reason for the party's failure to provide the information in a timely fashion or any evidence of bad faith or willfulness; (3) the potential that the other party will be prejudiced if the information is not excluded; and (4) whether a continuance can be provided to cure any prejudice.” Steady State Imaging, LLC v. Gen. Elec. Co., No. 017CV01048JRTKMM, 2018 WL 2047578, at *3 (D. Minn. May 2, 2018). “To justify a sanction of dismissal, Rule 37 requires: ‘(1) an order compelling discovery, (2) a willful violation of that order, and (3) prejudice to the other party.’ ” Sentis Grp., Inc. v. Shell Oil Co., 559 F.3d 888, 899 (8th Cir. 2009) (quoting Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)). “[A] district court has wide discretion to impose sanctions for a party's failure to comply with discovery requests,” United States v. Big D Enterprises, Inc., 184 F.3d 924, 936 (8th Cir. 1999), although “[t]he court's ‘discretion is bounded by the requirement of Rule 37(b)(2) that the sanction be “just” and relate to the claim at issue in the order to provide discovery.’ ” Hairston v. Alert Safety Light Prods., Inc., 307 F.3d 717, 719 (8th Cir. 2002) (quoting Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 558 (1992)). Before imposing the sanction of dismissal, “fairness requires a court to consider whether a lesser sanction is available or appropriate.” Keefer v. Provident Life & Acc. Ins. Co., 238 F.3d 937, 941 (8th Cir. 2000). A district court need not impose the least onerous sanction available, but the most appropriate under the circumstances. See id. District courts have “a large measure of discretion in deciding what sanctions are appropriate for misconduct.” Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000).

I. Whether Western Sugar violated Rule 26(a)

*4 DSI argues Western Sugar inaccurately described Suhr as a “Sugar Technologist” who may have information about events that occurred “after Plaintiff's fall” in its initial disclosures, and failed to identify or produce his daily reports in violation of its Rule 26(a) mandatory disclosure obligations. (Filing No. 153 at p. 2). Western Sugar counters that it had no intention of using Suhr's daily reports to support its claims or defenses. Western Sugar claims the reports “do not contain information that is relevant for those purposes,” “do not have pictures of the hole, the area of the hole, or the area of DSI's work,” and only contain “highly technical summaries of the work performed on the expansion project” not “germane to [its] claims or defenses.” (Filing No. 164 at p. 8). DSI replies that Western Sugar's statements and arguments are “disingenuous,” and had Western Sugar had produced Suhr's daily reports before fact depositions began, DSI could have asked the witnesses about the subject matter of the daily reports and to identify the numerous photographs contained throughout. (Filing No. 170 at p. 10).

Rule 26(a)(1)(A)(ii) requires a party to disclose any documents and tangible things “in its possession, custody, or control” that the party “may use to support its claims or defenses, unless the use would be solely for impeachment” without awaiting a discovery request for those items. Subsection (e) requires a party to supplement or correct its initial disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect[.]” Fed. R. Civ. P. 26(e)(1). “Neither rule requires a party to disclose any and all evidence that may be relevant to its claims; Rule 26(a) only compels the disclosure of evidence that a party may use to support its claims.” Tamares Las Vegas Properties, LLC v. Travelers Indem. Co., 696 F. Supp. 3d 930, 948 (D. Nev. 2023) (emphasis in original). The advisory committee's note to the 2000 amendment explains:

The initial disclosure obligation of subdivisions (a)(1)(A) and (B) has been narrowed to identification of witnesses and documents that the disclosing party may use to support its claims or defenses. “Use” includes any use at a pretrial conference, to support a motion, or at trial. The disclosure obligation is also triggered by intended use in discovery, apart from use to respond to a discovery request; use of a document to question a witness during a deposition is a common example. The disclosure obligation attaches both to witnesses and documents a party intends to use and also to witnesses and to documents the party intends to use if--in the language of Rule 26(a)(3)--“the need arises.”
A party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use. The obligation to disclose information the party may use connects directly to the exclusion sanction of Rule 37(c)(1). Because the disclosure obligation is limited to material that the party may use, it is no longer tied to particularized allegations in the pleadings. Subdivision (e)(1), which is unchanged, requires supplementation if information later acquired would have been subject to the disclosure requirement. As case preparation continues, a party must supplement its disclosures when it determines that it may use a witness or document that it did not previously intend to use.
The disclosure obligation applies to “claims and defenses,” and therefore requires a party to disclose information it may use to support its denial or rebuttal of the allegations, claim, or defense of another party. It thereby bolsters the requirements of Rule 11(b)(4), which authorizes denials “warranted on the evidence,” and disclosure should include the identity of any witness or document that the disclosing party may use to support such denials.

Fed. R. Civ. P. 26(a)(1) advisory committee's note to 2000 amendment.

After review, the Court concludes Western Sugar did not violate Rule 26(a)(1) by failing to disclose Suhr's daily reports until Plaintiff specifically requested them in advance of Suhr's March 2024 deposition. Rule 26(a) creates an obligation to produce documents a party “may use to support its claims or defenses,” but as the advisory committee's note explains, a party is not obligated to “disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use.” This reading of the rule directly tracks with the sanction of exclusion under Rule 37(c)(1)—if Western Sugar never intended to use the daily reports, sanctioning it by prohibiting it from using the reports is no punishment at all. And while the Court does tend to agree that Western Sugar's description of Suhr in its initial disclosures in March 2021 only as a “Sugar Technologist” was somewhat incomplete or misleading given his apparent role as Western Sugar's hired-consultant that oversaw or managed the overall project, the parties long ago learned in discovery that Suhr was among those “in charge” of the expansion project and was on site “all the time,” that Suhr was “hired as a consultant on the overall project,” and that Suhr was involved in the decisions for which contractors to hire, and did daily walk throughs with the contractors and coordinated their activities. (Filing No. 164 at p. 4; Filing No. 154-1; Filing No. 154-2; Filing No. 153 at p. 3). Under the circumstances, the Court finds sanctions are not warranted under Rule 37(c)(1).

II. Whether Western Sugar Violated Rule 34

*5 DSI additionally argues Suhr's daily reports were responsive to several of its Requests for Production of Documents (“RFPs”). Specifically, RFP Nos. 2, 4, 7, and 10-13. These RFPs and Western Sugar's responses are at Filing No. 154-9 and 154-10. On June 29, 2021, Western Sugar initially responded to the requests with “blanket objections” and without identifying any documents. On October 18, 2022, Western Sugar provided supplemental responses to Requests 7, 10, and 13, by producing documents generated during OSHA's and Western Sugar's investigations into the accident. However, Western Sugar never identified or produced Suhr's daily reports in response to any of DSI's RFPs. (Filing No. 153 at pp. 6-7).

Western Sugar contends Suhr's daily reports were not responsive to any of DSI's RFPs. Specifically, Western Sugar takes the position that the daily reports were not “communications among personnel of Western Sugar,” nor did the daily reports fit within the descriptions of any of the “documents” sought by DSI. Additionally, during the oral argument hearing held on December 9, 2024, counsel for Western Sugar explained that it searched for documents using search terms such as “hole,” but the daily reports did not contain references to the hole at issue—although there apparently is a reference in one report to a “cut-out,” which was not caught with its search terms. (Filing No. 153 at p. 4; see also Filing No. 252). Western Sugar addresses each RFP as follows:

DSI's RFP No. 2 sought “All Communications from before the Accident among personnel of Western about the Hole, and whether and when to fill-in or close the Hole.” (Filing No. 154-9 at 2). Suhr's daily reports are not communications among personnel of Western Sugar.
DSI's RFP No. 4 sought “All Communications from before the Accident internal to Western concerning safety hazards of holes in the floors of any Western facility, including any communications regarding accidents involving people falling through a hole in a floor at any Western facility.” Suhr's daily reports are not communications internal to Western Sugar.
DSI's RFP No. 7 sought “All Communications from after the Accident among personnel of Western about the Hole.” Suhr's daily reports are not communications among personnel of Western Sugar.
DSI's RFP No. 10 sought “All Documents that were created or generated during or as a result of [Western Sugar's] investigation of the Accident.” Suhr's daily reports were not generated during or as a result of Western Sugar's investigation of Cody's accident.
DSI's RFP No. 11 sought “All Documents that pertain to [Western Sugar's] claim that DSI Mechanical was negligent in connection with the Accident.” Suhr's daily reports do not pertain to Western Sugar's claim that DSI was negligent.
DSI's RFP No. 12 sought “All Documents indicating that anyone other than Western controlled the Hole after Paul Reed Construction Company left the jobsite.” Suhr's daily reports contain no such indication.
DSI's RFP No. 13 sought “All Documents created by or related to your safety personnel involving the Accident.” Suhr's daily reports were not created by Western Sugar's safety personnel, nor are they related to them.

(Filing No. 164 at pp. 10-11).

DSI replies that “Every single Daily Report was a communication among or internal to personnel of Western Sugar. Suhr testified that he sent them to Western Sugar management daily, and that Western Sugar management read and commented on them.” (Filing No. 170 at p. 7). Additionally, DSI asserts Suhr was “safety personnel” because he testified “[m]y job was to be sure that [the contractors] were following their safety protocol and not subjecting other people for risk” and “it's our job to be sure that everybody gets to go home in the same condition that they came to work today. And that's first and foremost before anything else[.]” (Filing No. 170 at p. 9).

*6 While the Court finds this to be a closer call, it ultimately concludes sanctions are not warranted under Rule 37(d)(1)(A)(ii) for Western Sugar's failure to produce Suhr's daily reports in response to DSI's Rule 34 requests for production. The record establishes Suhr generated these daily reports to document the daily progress of the entire expansion project at the Scottsbluff plant. (Filing No. 154-3 at pp. 71, 259). Suhr testified he emailed these reports to other Western Sugar personnel, as well as outside individuals outside Western Sugar, on a regular basis. See, e.g., Filing No. 154-3 at pp. 259-260 (testifying “You'd have to look at my email, but I'm pretty sure that it went to Mike Skeans, Rob Zimmerman, Don Gorsek, and Terry Tahal, Luke Rust ... And several more[.]”). So, while the Court is skeptical of Western Sugar's claims that these reports do not constitute internal “communications” because Suhr testified he did send these reports to other Western Sugar personnel, it appears the majority of the content of Suhr's daily reports were not responsive to the particular topics or manner in which DSI phrased its requests for production; the reports either do not contain the specific topics sought or were not generated as a result of the accident, about the accident, or about the hole. For example, when questioned about his daily reports, Suhr testified:

Q. Is there anywhere in your notes where you document DSI Mechanical using the hole that Cody fell through?
A. I would have to search it. I would guess not.
...
A. That didn't work. I'll search it. So unfortunately, I don't know what to search for.
Q. Well, they're your notes.
A. Yes. But I still don't know what my comment -- demolition, hole, DSI, demolition, hole.... Reed Mechanical, demolition hole. I don't know what I would reference it to.
Q. Do you recall seeing or hearing or documenting or noting or observing DSI Mechanical using the hole that Cody fell through?
...
A. In that area, I was not as present as I was in the outside areas as often, so I cannot recall seeing them use that hole, specifically to demo anything.

(Filing No. 154-3 at pp. 229-230).

Certainly, many of these daily reports appear germane to the case, although the parties clearly dispute their significance and importance to their claims. However, the Court is not convinced that Western Sugar should be sanctioned for failing to produce them to DSI based upon the plain reading of DSI's Rule 34 requests for production of documents. On the record before it, the Court finds sanctions are not warranted under Rule 37(d)(1)(A)(ii).

III. The Court's Inherent Power

Finally, DSI argues that, aside from Rule 37, the Court should exercise its inherent power to dismiss Western Sugar's claims against DSI for Western Sugar's bad faith in answering written discovery. (Filing No. 153 at pp. 16-17). Federal courts have the inherent power to manage their own proceedings and to control the conduct of those who appear before them. Chambers v. NASCO, Inc., 501 U.S. 32, 33, 44-45 (1991). As part of that inherent power, federal courts have the authority to sanction a party that has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, practices a fraud upon the court, or delays or disrupts the litigation or hampers a court order's enforcement. See id.; see also Wescott Agri-Prod., Inc. v. Sterling State Bank, Inc., 682 F.3d 1091, 1095 (8th Cir. 2012). The Eighth Circuit has also consistently recognized that courts have, by virtue of their inherent authority, the discretion “to fashion an appropriate sanction for conduct which abuses the judicial process.” Sherman v. Rinchem Co., Inc., 687 F.3d 996, 1006 (8th Cir. 2012) (citation omitted). These powers are “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Chambers, 501 U.S. at 32 (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962)). “Because of their very potency, inherent powers must be exercised with restraint and discretion.” Schlafly v. Eagle Forum, 970 F.3d 924, 936 (8th Cir. 2020) (quoting Chambers, 501 U.S. at 44-45).

After review, the Court finds Western Sugar's conduct does not rise to the level of abuse of the judicial process warranting the imposition of the sanction of dismissal under the Court's inherent authority. Courts typically reserve exercising such power where a party's conduct is particularly egregious. For example, in the case DSI discussed in its brief, Chrysler Corp. v. Carey, 186 F.3d 1016, 1022 (8th Cir. 1999), the defendants produced for the first time a letter four days into trial, and had “repeatedly lied [under oath] during the discovery process, denying the existence of conversations and documents which had in fact occurred and did exist,” which the Court found to be “far more egregious conduct than simple foot-dragging or even making unfounded challenges to discovery requests.” Carey, 186 F.3d at 1021. There were numerous examples of the defendants’ egregious responses during the discovery process; the district court thus concluded that the letter “was just ‘the tip of the iceberg,’ ” and “determined that the defendants had not only failed to follow the normal rules of discovery, but had probably withheld more material as well.” Id. Due to the “evidence of widespread abuse of the discovery process, the prejudice to [the plaintiff]” went “far beyond merely the added time and resources expended to discover evidence,” as the plaintiff “went to trial lacking evidence it would have had but for the deceit of the defendants[.]” Id. The Eight Circuit discussed the defendants’ “efforts to deny and conceal evidence, and to provide false and misleading testimony, seriously threatened the integrity of the trial as well as the judicial process in general.” Id. Under these circumstances, the Eighth Circuit upheld the district court's sanction of striking the pleadings of the defendants and entering judgment against the defendants on the issue of liability. Id. at 1021-1022.

*7 Here, Western Sugar's disclosure in March 2024 of Suhr's daily reports does not remotely rise to the level of discovery abuse discussed in Carey. The record does not establish Western Sugar acted “in bad faith, vexatiously, wantonly, or for oppressive reasons,” or “practice[d] a fraud upon the court, or delay[ed] or disrupt[ed] the litigation,” While there may have been an element of gamesmanship afoot, the Court finds there was not an abuse of the judicial process justifying the most serious sanction of dismissal or entry of judgment against Western Sugar.

IV. Good Cause to Take Additional Depositions

During the oral argument hearing held on December 9, 2024, the Court asked DSI's counsel to clarify how Suhr's daily reports would have affected the development of its case had Western Sugar produced them earlier. Specifically, since DSI alternatively requested that the Court reopen discovery so that it can, “at a minimum, redepose over 10 fact witnesses” to cure the prejudice it suffered from the late disclosure, the Court sought more information regarding whether these reports contained any new information and how DSI would have utilized these reports in its depositions. Generally, DSI responded the daily reports would have “confirmed” DSI's positions and previous witness testimony, and that its experts’ opinions did not change based upon their review of the daily reports. (See Filing No. 252). Thus, while it seems these reports would have been useful during discovery, the Court is not convinced that DSI has suffered prejudice warranting a continuance of trial or total reopening of discovery. Nevertheless, given that these daily reports are voluminous and highly technical and may contain information germane to the case, the Court provides DSI leave to take additional depositions of the 10-witnesses it identified in its brief (Filing No. 153), limited to 2-hours each only about the daily reports. The Court will not be continuing the trial, so whatever depositions DSI requests must be accomplished prior to the scheduled trial date. Upon consideration,

IT IS ORDERED:

Third-Party Defendant, DSI Mechanical, LLC's Motion for Sanctions against Third-Party Plaintiff Western Sugar Cooperative (Filing No. 151) is denied.
DSI is given leave to take additional depositions of the 10-witnesses it identified in its brief (Filing No. 153), limited to 2-hours each regarding the daily reports.
A previously advised by the Court during the oral argument hearing, given the close proximity to trial, any objection to this order under NECivR 72.2 must be made on or before December 16, 2024. Any response to such objection must be filed on or before December 23, 2024.

Dated this 11th day of December, 2024.