Exclusion for Nondisclosure

Exclusion for Nondisclosure

A party that fails to provide information or identify a witness as Rule 26(a) or Rule 26(e) requires may not use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. That is Rule 37(c)(1), and its remedy is preclusion: the court holds the party to its omission by refusing to let it use what it left out.¹

The rule changes the question the chapter has been asking. Rule 26(g) looks at what counsel did before signing: the signature certifies that a disclosure is complete and correct as of the time it is made, and a certification that violates the rule without substantial justification draws a sanction on the signer, the party, or both.² Rule 37(c)(1) asks only whether the information reached the opponent as the rules required.

It is also the shortest route to a sanction in the chapter. A motion to compel must carry a certification that the movant conferred or tried to confer in good faith before going to court.³ Rule 37(b) sanctions wait for a court order and a party’s disobedience of it. Rule 37(c)(1) requires neither a motion to compel nor a violated order, because its text turns on the failure to provide the information and the bar follows from that failure.

Two questions organize the analysis. The first is whether the party failed to provide what Rule 26(a) or (e) required. The second, if it did, is whether the party can show that the failure was substantially justified or harmless. An exam stem in which a party names a witness for the first time at trial, and the opponent never moved to compel, therefore points to Rule 37(c)(1) at once, since the rule applies without any earlier motion.

Self-Executing Preclusion

The text of Rule 37(c)(1) fixes its consequence without waiting for any order. The trigger is a failure to provide information or identify a witness as Rule 26(a) or (e) requires. The consequence is that the party may not use the omitted material to supply evidence. The reach covers a motion, a hearing, and a trial.⁴ The reference to Rule 26(e) brings in the duty to supplement or correct: a party that has made a disclosure, or has answered an interrogatory, request for production, or request for admission, must update it, so a failure to supplement falls within the bar just as an omission from the original does.⁵ Nothing in the rule requires the court to order disclosure and then find the order disobeyed. That absence is what self-executing means here: the consequence runs from the failure itself.

The drafters and the courts describe the sanction the same way. The advisory committee notes to Rule 37(c)(1) call exclusion an “automatic sanction,” and the Fourth Circuit relied on that description in Bresler v. Wilmington Trust Co. when it asked whether a Rule 26 violation warranted excluding a witness’s damages testimony.⁶ The First Circuit, in Lohnes v. Level 3 Communications, Inc., repeated that Rule 37(c)(1) “clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of this rule,” and that “the required sanction in the ordinary case is mandatory preclusion.”⁷ The words “in the ordinary case” leave room for the two exceptions the rule itself states, which the next subsection takes up. “Automatic” does not mean the opponent may stay silent, because the rule places a burden on the objecting party to move for preclusion.⁸

The rule is built this way because of what disclosure is for. The expert discovery rules are designed to let both sides prepare their cases adequately and to prevent surprise, which is why the Eleventh Circuit said in Cooper v. Southern Co. that compliance with Rule 26 is “not merely aspirational.”⁹ A party that knows what an opposing expert will say can prepare to meet it, and a party kept in the dark cannot. If the only price of silence were an order to disclose later, a party could hold a witness back until the opponent had prepared without knowing of the witness, and the disclosure deadline would be a suggestion. Automatic preclusion takes that advantage away, and it spares the injured party from chasing compliance through a string of motions and orders.

Expert opinions supply the standard illustration. Unless the parties stipulate or the court orders otherwise, the disclosure of an expert retained for the case, or of an employee whose duties regularly involve giving expert testimony, must be accompanied by a written report prepared and signed by the witness.¹⁰ The default timing is at least 90 days before the date set for trial or for the case to be ready for trial.¹¹ What the report must contain belongs to the reading on disclosure. The point here is that these obligations are the party’s own, and a failure to meet either one can bring Rule 37(c)(1) into play without any further step.

Lohnes applied the bar at summary judgment against an expert whom the party had not disclosed as the rules required. The court identified two reasons the rule might not have applied and rejected both. Level 3 had satisfied the objecting party’s burden by filing a timely motion to strike the expert’s affidavit, which in the context of summary judgment was tantamount to a motion for preclusion. And although Rule 37(c)(1) has traditionally been invoked to bar expert testimony at trial, its phrasing applies with equal force to motions for summary judgment.¹² The court called disregarding the affidavit “amply justified,” because the Civil Rules require a party to disclose, during pretrial discovery, the identity of any person who may be used at trial to present expert opinion evidence.¹³

Cooper shows the bar reaching a witness who was eventually identified. The plaintiffs first described Del Roccili as a fact witness, identified him as an expert only in response to the defendants’ discovery requests, and never supplied a report containing his opinions or their bases.¹⁴ His declaration extracted substantial data from the defendants’ databases, performed statistical probability calculations, and expressed opinions about their significance, which is work that requires technical or specialized knowledge. The court therefore treated it as an expert report, and because the plaintiffs had not complied with Rule 26, it held that the trial judge acted within sound discretion in enforcing Rule 37(c).¹⁵ The label the plaintiffs first attached to the witness did not change what the declaration was.

The two decisions fail in different ways, since one expert was never disclosed as required and the other was identified without a report. The reasoning is the same in both: the party did not provide what Rule 26 required, so the bar applied. An exam stem that attaches an expert’s declaration to a summary-judgment opposition is asking first whether anything Rule 26(a) or (e) required was left out, and only then whether the opponent invoked the bar.

In Lohnes and Cooper the missing disclosure or missing report was the whole problem, while in the scaffold case nothing is missing and there is no failure for the rule to attach to. A party that did fail has two ways out, and the next subsection takes them up.

Justified or Harmless Failures

The bar in Rule 37(c)(1) applies “unless the failure was substantially justified or is harmless,” and those closing words are its only exits.¹⁷ They exist because of what exclusion protects. Preclusion safeguards the opponent’s ability to prepare, so it fits when that ability was lost and overreaches when the opponent was unhurt or the party had a sound reason for the omission. Without the exceptions, a harmless slip, such as a witness left off a formal list that the opponent had known about for months, would cost a party its evidence just as a deliberate ambush would. Bresler framed the question as whether a Rule 26 violation warranted exclusion, and it read the advisory committee’s “automatic sanction” as applying when the failure is neither substantially justified nor harmless.¹⁸

The exceptions matter only after a failure has been established, and the supplementation duty in Rule 26(e) is part of what defines one: information that should have been supplied or corrected and was not falls within the bar.¹⁹ Once a failure is shown, two burdens divide the work. The opponent must invoke the bar, and in Lohnes v. Level 3 Communications, Inc. a timely motion to strike the expert’s affidavit did so at summary judgment.²⁰ The party that failed to disclose must then bring itself within an exception. The structure of the rule points that way, because the bar comes first and the exceptions follow the word “unless.” The practical reason is that why the information was withheld lies within that party’s own knowledge, and an opponent cannot easily prove the reasons behind the other side’s silence.

Substantial justification asks whether the party had a reason for the omission that a court can accept. The rule does not define the phrase, and the same words appear in Rule 26(g)(3), which attaches a sanction to a certification that violates the rule “without substantial justification.”²¹ A party with a genuine, reasonable dispute about whether a disclosure duty applied has the kind of reason a court can respect, whereas a party that simply let the deadline pass has none. Cooper shows the failing side of that line. The plaintiffs there called their statistician a fact witness, identified him as an expert only in response to discovery requests, and never served a report stating his opinions or their bases.²² Renaming the witness was no justification for withholding the report, because the declaration’s data extraction, probability calculations, and opinions plainly required specialized knowledge.

Harmlessness asks a different question, which is whether the opponent was deprived of a fair chance to prepare. Cooper supplies the measure: the expert discovery rules are designed to let both sides prepare adequately and to prevent surprise.²³ The defendants in that case had neither the opinions nor the bases for them, so they could not prepare against the expert, and the court of appeals found the trial judge within sound discretion in enforcing Rule 37(c).²⁴ Surprise and lost opportunity to prepare are the marks of a failure that is not harmless, and a failure is harmless only when those marks are absent.

What separates the neighbor from Cooper’s Del Roccili is what the other side received. The Cooper defendants never got the opinions they needed, while the defendant here got everything except the formal label. An exam stem that says only that a witness was left off the formal list has not told you whether the opponent was hurt, so the analysis turns to what the opponent actually knew and when.

Timing is where harmlessness most often fails. In Lohnes the party offering the expert’s affidavit had not made the required expert disclosures, and the First Circuit found that disregarding the affidavit was amply justified.²⁵ Timing explains why a late disclosure seldom saves a party. While discovery remains open, a late disclosure can still be followed by a deposition and a rebuttal expert, and the harm may be small or absent. Once discovery closes, the opponent meets the new opinions for the first time in a pending summary-judgment motion or on the eve of the final pretrial conference, with the usual means of responding gone. A disclosure made only after discovery has closed will therefore rarely qualify as harmless.

Lohnes and Cooper show two ways to fail, one by never disclosing the expert and one by identifying the expert without a report, and in neither case did the court excuse the omission. The exceptions ask about the reason for the failure and its effect on the opponent, and the rule’s text says nothing about the nondisclosing party’s good or bad faith. Two mistakes follow from overlooking that. One treats the sanction as automatic in a way that leaves no exceptions. The other asks whether the party meant any harm, when the question is whether the opponent was in fact harmed.