1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 Neither party requested oral argument under Local Civil Rule 7(b)(4). Accordingly, the Court

decides this matter on the memoranda, declarations, and exhibits submitted by the parties.

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_______________________________________)

NORTHWEST PIPELINE CORPORATION, )

) No. C05-1605RSL

Plaintiff, ) 

v. )

) ORDER GRANTING DEFENDANTS’

DAVID L. ROSS and DEBRA L. ROSS, et al., ) MOTION IN LIMINE REGARDING

) EXPERT WITNESSES

)

Defendants. )

_______________________________________)

I. INTRODUCTION

This matter comes before the Court on “Defendants’ Motions In Limine Re Expert

Witnesses” (Dkt. #335). In this condemnation action, plaintiff Northwest Pipeline Corporation

(“NWP” or plaintiff) amended an existing right-of-way contract and condemned a new easement

for the installation of a natural gas pipeline under defendants Deborah and David Ross’

property. The issue remaining for trial, is the amount of just compensation owed to defendants. 

Defendants move in limine under Fed. R. Civ. P. 26 and 37 to exclude documents and three of

plaintiff’s expert witnesses and their report because this material was untimely disclosed. For

the reasons set forth below, the Court grants defendants’ motion in limine.1

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 1 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 As of October 19, 2005, the highest written offer to Ross was $55,582.64. See Dkt. #43

(Corrected Amended Order Granting Plaintiff’s Motion for Preliminary Injunctive Relief) at 2 n.1.

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -2-

II. DISCUSSION

A. Background

On September 19, 2005, plaintiff filed this condemnation action under the Natural Gas

Act, 15 U.S.C. § 717, against 186 separately enumerated defendants. See Dkt. #1 (Complaint -

Caption). David and Debra Ross (hereinafter “defendants”) are the only remaining defendants. 

See Dkt. #331 (Stipulation and Agreed Order Moving Case Schedule Deadlines for Ross) (“[A]ll

other defendants in this case have been dismissed and Ross is the last remaining defendant.”). 

On March 29, 2007, after considering the parties’ stipulation, the Court established April 20,

2007 as the expert disclosure deadline and set trial for October 1, 2007. See Dkt. #317 (Order

Regarding Stipulations and Continuing Trial Date). 

Defendants claim that their property yields quality gravel for mining, which they contend

is an element of the highest and best use for purposes of determining just compensation. See

Dkt. #335 at 2. To support this contention, on May 4, 2007 under Fed. R. Civ. P. 26(a)(2)(B),

defendants provided plaintiff with expert disclosures for Mr. Ross and Thomas Berry. See Dkt.

#336 (Dunphy Decl.) at Ex. B. Based on assumptions made by Mr. Ross, Mr. Barry opined on

the total cubic yards of material subject to the taking. Id. (Barry Report). Relying on Mr.

Barry’s calculation, Mr. Ross then opined in his report that net value of the gravel material

within the taking and regulated setbacks was $823,368.2

 Id. (Ross Report) (stating “to get a

precise quantity of cubic yards of material I have enlisted the expertise of Metron Planning and

Surveying [Mr. Barry] to take survey information supplied by Williams Pipelines[’] engineers

and calculate the cubic yards in this taking.”).

On August 31, 2007, the parties simultaneously exchanged expert disclosures including

reports for their respective appraisal experts. See Dkt. #336 at Ex. D (NWP’s disclosure of Jeff

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 2 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -3-

Grose as appraisal expert); Ex. E (defendants’ disclosure of Don Gustafson as appraisal expert).

On September 26, 2007, based again on a stipulation from the parties, the Court

continued the trial date to April 7, 2008 because Mr. Ross had been hospitalized for an extended

period of time due to an accident. See Dkt. #331. As part of this continuance, the Court

established October 18, 2007 as the Local Civil Rule 39.1(c)(3) mediation deadline and ordered

that discovery be completed by January 11, 2008. Id. at 2. In compliance with the Court’s

September 26, 2007 order, the parties engaged in formal mediation on October 18, 2007, but

mediation did not result in settlement. See Dkt. #336 at ¶8.

On Friday, November 16, 2007, plaintiff wrote to defendants to inform them “that Mr.

Andreas Kammereck and Mr. Don West of Golder Associates, Inc. have been retained as experts

and that [plaintiff] will be sending the Supplemental Expert Disclosures shortly.” See Dkt. #347

(Sanders Decl.) at Ex. E. Over two weeks later, on December 5, 2007, plaintiff identified three

experts, “naming Andreas Kammereck, Don West, and Grant Bailey as additional experts in this

matter.” Id. at Ex. F. The disclosure for these three experts (the “Golder experts”), however,

did not include an expert report. See Dkt. #336 at Ex. F (NWP’s Supplemental Expert

Disclosure Pleading) (stating “see upcoming report”). 

Enclosed with a letter dated Friday, December 21, 2007, plaintiff provided a copy of a

seven-page document dated May 19, 2004 bearing a Golder Associates’ title block labeled

“Record of Borehole NFSR-3.” See Dkt. #347 at Ex. G (letter enclosing document); Dkt. #336

at Ex. G (copy of Record of Borehole NFSR-3). 

On the January 11, 2008 discovery deadline, plaintiff provided defendants with a copy of

a 184-page expert report from Messrs. Kammereck, West and Grant (the “Golder report”). See

Dkt. #336 at Ex. G; Dkt. #355 at ¶2. The report contains a 23-page narrative section and nine

appendices totaling an additional 161 pages. See Dkt. #355 (Suppl. Dunphy Decl.) at ¶2. After

the discovery cutoff, plaintiff continued producing documents. See Dkt #347 at Ex. J (January

17, 2007 letter from plaintiff producing documents and updating defendants on supplemental

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 3 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -4-

document production); id. at Ex. K (January 30, 2008 letter enclosing documents for

production). On January 18, 2008, plaintiff supplemented the Golder report with replacement

pages because of typos. Dkt. #336 at Ex. G. On January 30, 2008, plaintiff mailed defendants a

letter stating that “[w]e should also schedule the depositions for the geotechnical experts at

Golder and Associates, whose expert report was submitted to you on Friday, January 11, 2008.” 

Dkt. #347 at Ex. K. 

The parties’ dispute related to these issues culminated in a letter from plaintiff’s counsel

on February 12, 2008, stating:

You indicate that it is your intention to bring a motion in limine to exclude the

Golder bore log prepared for Northwest in 2004 because the document was

intentionally withheld. This is a serious charge for which you have failed to

provide any support. You have not identified any interrogatory or request for

discovery to which that document was responsive. Moreover, the discovery

deadline had not yet passed at the time you received the document, and thus it was

a timely disclosure. I also remind you that both parties continued to exchange

documents well after December 21, 2007. In light of these facts, please explain to

me the basis of your assertion that the document was intentionally withheld.

Finally, you also indicate that it is your intention to bring a motion in limine to

exclude the Golder expert report because the time for submitting expert reports has

long since passed. You were notified by telephone in late November and in

writing on December 5, 2007, of our intention to engage the expert services of

geologists at Golder & Associates. You received that expert report on January 11,

2008, more than a month ago. Trial in this matter is not schedule [sic] to begin for

another two (2) months, on April 7, 2008.

Northwest has not caused your client any prejudice as required by Ninth Circuit

case law for the exclusion [sic] our expert report. You cannot claim that you were

surprised when you received our report. Moreover, there was and continues to be

sufficient time for you to take the deposition of our experts and we have

repeatedly made them available to you. It is your prerogative to bring a motion in

limine. However, your decision to delay taking the deposition of our experts until

a ruling on such motion will be the true cause of any disadvantage or prejudice

your client may suffer. 

Dkt. #347 at Ex. L. On March 5, 2008, in compliance with the Court’s September 26, 2007

scheduling order, defendants’ filed the motion in limine now before the Court for consideration. 

See Dkt. #331; 335. On March 11, 2008, due to a conflict with a pending criminal trial set for

April 7, 2008, the Court struck the trial date in this matter and set a pretrial conference for April

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 4 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -5-

29, 2008 to reschedule the trial. See Dkt. #344.

B. Analysis

Defendant moves in limine under Fed. R. Civ. P. 26 and 37 to exclude: (1) the “Record

of Borehole NFSR-3” (hereinafter “Bore Log”) and a CAD document on a Golder title block

dated May 21, 2004 and labeled “Figure F-1” (hereinafter “Figure F-1”), which consists of a

notated aerial photo and cross-section from the “NWP/Capacity Replacement Project”; (2) the

Golder experts; and (3) the Golder report and any testimony referencing the report. See Dkt.

#354 at 6. “Although the Federal Rules of Evidence do not explicitly authorize in limine

rulings, the practice has developed pursuant to the district court’s inherent authority to manage

the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed. R. Evid.

103); see Fed. R. Evid. 103(a) (empowering the court to make “a definitive ruling on the record

admitting or excluding evidence, either at or before trial”); Merrick v. Paul Revere Life Ins. Co.,

500 F.3d 1007, 1014-15 (9th Cir. 2007) (affirming, under abuse of discretion review, the district

court’s ruling excluding evidence on plaintiff’s motion in limine as a sanction for discovery

abuses). Below, the Court separately addresses the three categories of material at issue.

1. Documents 

a. Bore Log

In April of 2004, Golder drilled a 121.5' deep exploratory borehole on defendants’

property to determine the feasibility of using a horizontal directional drill (“HDD”) to install the

pipeline under the North Fork Stillaguamish River. See Dkt. #5, Ex. D at 1; Dkt. #346 at 3. The

Bore Log contains, among other things, a description of the soil profile found in each layer of

the borehole. See Dkt. #336 at Ex. G (Bore Log). Defendants seek exclusion of the Bore Log at

trial because it was belatedly produced on December 21, 2007. See Dkt. #354 (“NWP fails to

show any evidence justifying late disclosure of the bore log.”). Plaintiff makes three arguments

in response. First, plaintiff argues that because it did not possess the Bore Log, plaintiff timely

produced it in December of 2007 upon discovery in Golder’s files, and contends “it is far from

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 5 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 3

 The Court discusses this argument in section II.C, below.

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -6-

clear that the document was responsive to the discovery requests made by Ross.” Dkt. #346 at

4. Second, plaintiff contends that the Bore Log should not be excluded because it “is the only

scientific piece of evidence from a geologist about the gravel resource.” Dkt. #346 at 1.3

Finally, plaintiff contends that exclusion of the Bore Log is not warranted because it was

disclosed more than two weeks before the close of discovery and before defendants’ experts

were deposed in January of 2008. See Dkt. #346 at 3.

The Bore Log was ultimately produced by plaintiff, therefore the issue is whether the

Bore Log should be excluded at trial because it was subject to disclosure under Rule 26(a) and

defendants’ discovery requests, but its production was late. There is no dispute that the Bore

Log was disclosed late in this litigation. Although the Court does not know exactly when

defendants’ requests for production were served, the requests are dated September 20, 2006 and

plaintiff’s responses were received by defendants on October 23, 2006. See Dkt. #336 at Ex. H. 

Under Fed. R. Civ. P. 34(b)(2)(A), plaintiff’s responses were due within 30 days after being

served. Id. (“The party to whom the request is directed must respond in writing within 30 days

after being served.”). Plaintiff’s Rule 26(a) initial disclosures were due on January 10, 2006. 

See Dkt. #118. Given that the Bore Log was not produced until December 21, 2007, however,

the Court has no doubt that the Bore Log was not timely disclosed under Rules 34(b)(2)(A) and

26(a) and (e). Therefore, the next question is whether the Bore Log was subject to production

under defendants’ document requests and Rule 26.

(i) The Bore Log was subject to plaintiff’s control

First, plaintiff is wrong to assert that it did not have an obligation to produce the Bore

Log because it was not in its possession. See Response at 3 (“Before mid-December, the Bore

Log was in the possession of Golder.”). Rule 34(a)(1)(A) allows a party to request “items in the

responding party’s possession, custody, or control,” and defendants’ first request for production

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 6 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

 The Court finds that defendants met their burden to show that plaintiff had control over the

Golder documents at issue. See Int’l Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d at

1452 (“The party seeking production of documents . . . bears the burden of proving that the opposing

party has such control.”); see, e.g., Dkt. #354 at 6; Dkt. #355 at ¶¶2-5.

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -7-

explicitly requires production of documents in plaintiff’s “possession, custody, or control[.]” 

See Dkt. #336 at Ex. H; A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal.

2006) (“Under Rule 34, a party must produce or permit inspection of documents responsive to a

request for production of documents when such documents are in the party’s ‘possession,

custody or control.’”). “Control is defined as the legal right to obtain documents upon demand.” 

United States v. Int’l Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452

(9th Cir. 1989). Under Fed. R. Civ. P. 26(g), a party or attorney has an obligation to conduct a

“reasonable inquiry” for the basis of a discovery response, and courts have held that “based on

that inquiry, ‘[a] party responding to a Rule 34 production request . . . is under an affirmative

duty to seek that information reasonably available to [it] from [its] employees, agents, or others

subject to [its] control.’” A. Farber & Partners, Inc., 234 F.R.D. at 189 (alterations in original)

(quoting Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (citation omitted).

Based on this authority, the Court finds that plaintiff had control over the Bore Log.4

 On

September 20, 2005, plaintiff filed a motion for preliminary injunction to take possession of

certain easements and property interests in order to attempt the HDD. See Dkt. #2. In support

of this motion, plaintiff submitted an exhibit dated November 2004 and titled “Northwest

Pipeline Corporation Horizontal Directional Drill Contingency Plan Capacity Replacement

Project.” See Dkt. #5 (Long Decl.) at Ex. D. This exhibit discloses that:

Northwest retained Golder and Associates, Inc. to complete a geotechnical

investigation of several waterbodies where preliminary assessments indicated the

horizontal direction drill (HDD) method should be considered for installation of

the pipeline. The HDD method involves drilling a pilot hole under the waterbody

and banks, then enlarging that hole through successive reamings until the hole is

large enough to accommodate the pipe. The report findings were published under

the title Capacity Replacement Project, HDD Geotechnical and Feasibility

Assessment, Whatcom, Skagit, Snohomish, Pierce and Thurston Counties,

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 7 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

 Notably, plaintiff does not state that Golder reviewed its files in order to comply with plaintiff’s

discovery obligations. Plaintiff’s response indicates that Golder reviewed its files to prepare its expert

report. See Dkt. #346 at 3.

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -8-

Washington and presented to an interagency group on July 1, 2004 at the U.S.

Army Corps of Engineers Office in Seattle, Washington. The report is also

available under the project docket CP05-32-000.

Id. at pg. I-1. Significantly, the Bore Log is keyed to Figure F-1, a document completed for the

NWP Capacity Replacement Project referenced above. See Dkt. #355 at Ex. B. Although

plaintiff might be technically correct that it did not have “possession” of the Bore Log, the

information above shows that plaintiff had “control” over the Bore Log given that it was

completed by Golder at plaintiff’s direction to evaluate the feasibility of the HDD. What

troubles the Court, is plaintiff’s representation that the documents in Golder’s files were not

reviewed5

 until late 2007 after Golder was retained as an expert in this case, despite the fact that

plaintiff disclosed as part of its September 2005 preliminary injunction motion that it hired

Golder in 2004 to conduct a subsurface investigation of the property. See Dkt. #346 at 3 (“It

was not until Northwest retained Golder as experts in the condemnation matter that Golder

reviewed its files and discovered that the Bore Log existed in mid-December.”). Plaintiff has

not indicted that the Bore Log’s disclosure was the product of a reasonable inquiry undertaken in

response to defendants’ discovery requests or as part of its Rule 26 disclosure obligations. 

Rather, plaintiff’s representations regarding the Bore Log show that its serendipitous disclosure

was the result of plaintiff’s belated decision to retain Golder as an expert in order to contest

defendants’ claim concerning the gravel resource on the property. As a result, plaintiff has not

shown that it conducted a “reasonable inquiry” into documents over which it had control,

including Golder’s files, subject to Rule 26’s disclosure requirements and defendants’ discovery

requests. 

(ii) The Bore Log was subject to production under defendants’ document

requests and Rule 26

 In response, plaintiff defends the late disclosure of the Bore Log by arguing that “it is far

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 8 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

 This is an evasive discovery response because it leaves defendants in a state of uncertainty about

what is and is not being disclosed. For example, the response states that plaintiff is producing documents

in its possession, but does not disclose whether documents in plaintiff’s custody or control are being

produced. Furthermore, in incorporating its response to request No. 1 by reference, plaintiff does not

distinguish between the documents being produced under request number one versus request number

thirteen. Finally, plaintiff’s boilerplate objection based on the work product doctrine, without more,

violates both Rule 26 and Ninth Circuit authority. See Burlington N. & Sante Fe R.R. Co. v. United

States Dist. Court, 408 F.3d 1142, 1147-49 (9th Cir. 2005) (“Rule 26 clarifies that a proper assertion of

privilege must be more specific than a generalized, boiler-plate objection” and “[w]e hold that boilerplate

objections or blanket refusals inserted into a response to a Rule 34 request for production of documents

are insufficient to assert a privilege.”); Fed. R. Civ. P. 26(b)(5) (stating that when a party withholds

information based on the work product doctrine it must “describe the nature of the documents,

communications, or tangible things not produced or disclosed—and do so in a manner that, without

revealing information itself privileged or protected, will enable other parties to assess the claim.”). The

response to document request number thirteen provides no indication that plaintiff intended to provide a

privilege log or other response to allow defendants to meaningfully contest the work product objection.

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -9-

from clear that the document was responsive to the discovery requests made by Ross.” Dkt.

#346 at 4. Defendants contend that the Bore Log should have been produced by plaintiff as

responsive to requests for production one and thirteen. Defendants’ first request for production

states: “Produce all documents, maps, surveys, diagrams[,] aerial photographs, and other

writings in your possession, custody, or control describing, referencing, or depicting the

easement created under the Right of Way Contract.” Dkt. #336 at Ex. H. Plaintiff responded by

stating “Plaintiff has produced responsive documents herewith to the extent such documents are

still in Plaintiff’s possession.” Id. Defendants’ request for production number thirteen states: 

“Produce all plans, drawings, photographs, and documents of any kind relating to the work you

performed anywhere on Defendants’ property since you took possession for construction

activities.” Id. Plaintiff responded to this request as follows:

OBJECTION. This request seeks documents that are protected as attorney work

product. Without waiving the foregoing objection, Plaintiff responds as follows: 

See Response to Request for Production No. 1. In addition, Plaintiff has produced

other non-objectionable responsive documents herewith to the extent that such

documents are still in Plaintiff’s possession.6

Id. These responses and plaintiff’s failure to produce the Bore Log are problematic on several

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 9 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -10-

scores. First, as discussed above, plaintiff failed to disclose whether it conducted a reasonable

inquiry into documents subject to its control, not just in its possession. 

Second, although plaintiff contends that the Bore Log was not responsive to request

number one because “[t]he Bore Log does not describe, reference or depict the easement” and

“did not contain any information about the easement or the methods for building and installing

the pipeline,” and the Bore Log was not responsive to request number thirteen because

“Northwest’s possession occurred over a year after the HDD feasibility assessment and after the

Bore Log was generated,” the Court finds that this type of narrow, evasive response violates the

spirit of the discovery rules. Dkt. #346 at 5; see Fed. R. Civ. P. 26 advisory committee’s note

(1983) (“[E]vasion or resistence to reasonable discovery requests pose significant problems. . . .

The purpose of discovery is to provide a mechanism for making relevant information available to

the litigants. . . . Thus, the spirit of the rules is violated when advocates attempt to use discovery

tools as tactical weapons rather than to expose the facts and illuminate the issues by . . .

unnecessary use of defensive weapons or evasive responses.”). 

Plaintiff’s own experts have stated that borehole number three was drilled along the right

of way. See Dkt. #355, Ex. A (Golder report) at 6 (stating, under the heading “Previous HDD

Investigations by Golder” that the investigations included the “drilling of three exploratory

boreholes [including the subject of the Bore Log, NFSR-3] along the pipeline right-of-way”);

(“Borehole NFSR-3, being located near the south boundary of the subject property, is directly

applicable to the understanding of the subsurface geology of the property.”) (emphasis added). 

To take the position that the Bore Log’s soil survey does not “describe, reference, or depict” the

easement is the type of sharp practice that this Court does not condone. Furthermore, as

plaintiff’s experts state, NFSR-3 and its accompanying Bore Log, was done “in order to

complete a geotechnical and feasibility assessment for a proposed HDD at the [North Fork

Stillaguamish] river crossing.” Id. Therefore, for plaintiff to argue in response to defendants’

motion that the “Bore Log did not contain any information about . . . methods for building and

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 10 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -11-

installing the pipeline” misrepresents the facts. See Dkt. #346 at 5 (emphasis added). Golder

completed the Bore Log specifically to determine whether a certain method (HDD) for installing

the pipeline was possible. As a result, the Bore Log was responsive to request for production

thirteen because it relates to the work undertaken after plaintiff took possession for construction

activities—namely, the HDD. 

Finally, the Court also finds that plaintiff should have disclosed the existence of the

documents in Golder’s files, like the Bore Log and Figure F-1 and any other documents

supporting plaintiff’s claims or defenses, in its Rule 26(a) disclosures. Under Rule 26(a)(1)(A),

“a party must, without awaiting a discovery request, provide to the other parties: . . . (ii) a

copy—or a description by category and location—of all documents, electronically stored

information, and tangible things that the disclosing party has in its possession, custody, or

control and may use to support its claims or defenses, unless the use would be solely for

impeachment.” Rule 26(e)(1) further provides that:

A party who has made a disclosure under Rule 26(a)—or who has responded to an

interrogatory, request for production, or request for admission—must supplement

or correct its disclosure or response: (A) in a timely manner if the party learns that

in some material respect the disclosure or response is incomplete or incorrect, and

if the additional or corrective information has not otherwise been made known to

the other parties during the discovery process or in writing[.]

Based on defendants’ initial disclosures, plaintiff was on notice at least as early as

January 10, 2006 that the property’s potential gravel resource would be an issue in valuation. 

See Dkt. #150 at 2; 4 (stating that Mr. Ross has knowledge of the “extent and value of the gravel

resource on the Property” and documents including “[p]rice information regarding market value

of gravel” would be used by defendants to support their claims or defenses). And, in September

of 2005, to support its preliminary injunction motion, plaintiff attached the exhibit indicating the

fact that Golder completed a geotechnical study of easement area. See Dkt. #5, Ex. D. 

Accordingly, even if plaintiff ultimately supplemented its disclosures by producing the Bore

Log, the Court cannot find that this disclosure in December of 2007, two weeks before the

discovery cutoff was timely under Rule 26(e). As discussed below, the late disclosure Figure FCase 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 11 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

 Plaintiff, however, opposes exclusion of the Golder report, which includes Figure F-1 as an

exhibit.

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -12-

1 as part of Golder’s January 11, 2008 report is even more egregious.

For all these reasons, the Court finds that plaintiff failed to timely produce the Bore Log

in response to defendants’ requests for production, and failed to timely disclose the existence of

the Golder documents as part of its obligation under Rule 26(a) and (e). The only remaining

issue is the appropriate remedy for this discovery violation, which the Court discusses below in

section II.C.

b. Figure F-1

Defendant also moves in limine to exclude Figure F-1. Figure F-1 is notable because it:

(1) superimposes an aerial photograph with the location of the HDD and borehole number

three’s (NRSR-3 and the subject of the Bore Log) location on the property; (2) provides a crosssection of the subsurface conditions on the HDD path, which includes the property; and (3) is

attached as an exhibit and referenced in the narrative portion the Golder report. See Dkt. #355,

Ex. A at 6 (referencing Figure F-1 in Appendix C of the report). In its response, plaintiff does

not mention Figure F-1 or oppose its exclusion as substantive evidence at trial despite the fact

that defendants specifically objected to the document in their motion. See Dkt. #335 at 11.7

What is remarkable in light of the aforementioned discovery violations, is plaintiff’s failure to

explain why Figure F-1 was not produced in response to defendants’ discovery requests. Figure

F-1 was not disclosed in the course of plaintiff’s Rule 34 document production. Rather, Figure

F-1 was disclosed on last day of discovery as an exhibit to the Golder report. While plaintiff

disputes its obligation to produce the Bore Log in response to defendants’ discovery requests,

there is no doubt that Figure F-1 was responsive to defendants’ first request for production as an

aerial photograph in plaintiff’s custody, or control, describing, referencing, or depicting the

easement created under the Right of Way Contract. See Dkt. #336 at Ex. H. In section II.C

below, the Court discusses the remedy for plaintiff’s failure to timely disclose this document in

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 12 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -13-

violation of its discovery obligations. 

2. Golder expert witnesses

Defendants move in limine to exclude the Golder experts because they were not timely

disclosed. Expert disclosures were due on April 20, 2007. See Dkt. #317 (Order Regarding

Stipulations and Continuing Trial Date); Fed. R. Civ. P. 26(a)(2)(C) (“A party must make these

[expert] disclosures at the times and in the sequence that the court orders.”). The three Golder

experts were not disclosed until December 5, 2007. See Dkt. #347 at Ex. F. In its response,

plaintiff does not dispute that this disclosure was untimely, but rather contends that it was

harmless. Accordingly, the Court considers the assertion of harmlessness in its discussion of the

remedy for plaintiff’s late disclosure of the Golder experts.

3. Golder report

Finally, defendants move to “exclude any reference to the Golder report and the

documents composed thereof at trial.” Dkt. #354 at 6. Expert reports were on April 20, 2007. 

See Dkt. #317. The Golder report was not disclosed until the close of discovery on January 11,

2008. In its response, plaintiff does not dispute the disclosure of the Golder report was late, but

rather contends that it was harmless. Accordingly, the Court considers the assertion of

harmlessness in its discussion of the remedy for plaintiff’s untimely disclosure of the Golder

report.

C. Remedy for discovery violations

As the Court found above, plaintiff failed to timely disclose the Bore Log, Figure F-1, the

Golder expert witnesses and their report. The remaining issue is the appropriate remedy for

these violations. Defendants argue for exclusion of this material at trial. In contrast, plaintiff

opposes an exclusionary remedy and instead asserts that the appropriate course is to give

defendants the opportunity to depose the Golder experts. See Dkt. #346 at 11 (“Ross has had

and continues to have a substantial amount of time to prepare for those depositions and its crossexamination of the Golder experts at trial.”).

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 13 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8

 In their motion, defendants did not seek recovery of attorney’s fees.

9

 Although plaintiff references that it has the burden to show harmlessness, it nevertheless tries to

shift its burden to defendants by contending they have failed to show that they have been harmed by

plaintiff’s conduct. See, e.g., Dkt. #346 at 2 (“Ross has failed to articulate harm with respect to the

Golder Report.”); 11 (“Ross has not demonstrated the necessary prejudice to exclude such reports.”).

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -14-

When a party fails to disclose or supplement its discovery responses in accordance with

Rule 26(a) and (e), Rule 37(c) provides the remedy: 

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 . . . at a trial, unless the failure was substantially justified or is harmless. 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).8

Id. at Rule 37(c)(1) (emphasis added). The Ninth Circuit “give[s] particularly wide latitude to

the district court’s discretion to issue sanctions under Rule 37(c)(1).” Yeti by Molly Ltd. v.

Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Rule 37(c)(1)’s exclusionary

sanction has been characterized by the Ninth Circuit and the advisory committee notes as

“automatic” and “self-excuting.” Id. (“The Advisory Committee Notes describe it [Rule

37(c)(1)] as a ‘self-executing,’ ‘automatic’ sanction to ‘provide[] a strong inducement for

disclosure of material.’”) (alteration in original). However, “[t]wo express exceptions

ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the parties’

failure to disclose the required information is substantially justified or harmless.” Id.

1. Golder experts and report

In this case, plaintiff does not argue and the Court does not find that plaintiff was

substantially justified in the belated disclosure of the Golder experts and report. Instead, the

question is whether the late disclosure was harmless as plaintiff asserts in its response. Plaintiff

correctly acknowledges that it has the burden to prove harmlessness. See Dkt. #346 at 6;9

 Yeti

by Molly Ltd., 259 at 1107 (“Implicit in Rule 37(c)(1) is that the burden is on the party facing

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 14 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -15-

sanctions to prove harmlessness.”). Plaintiff’s central argument in response is that its late

disclosures are harmless because they can be remedied by continuing discovery and allowing

defendants to depose the Golder experts about their testimony and the contents of the Golder

report. See Dkt. #346 at 7 (arguing that “deposing these Golder experts can alleviate any

prejudice and harm and that excluding testimony is a particularly harsh, disfavored sanction”). 

Courts, however, have rejected this argument because although a discovery continuance

might cure untimely disclosures, it would also render Rule 37(c)(1) toothless. See Yeti by

Molly Ltd., 259 F.3d at 1106 (“Rule 37(c)(1) gives teeth to these requirements by forbidding the

use at trial of any information required to be disclosed by Rule 26(a) that is not properly

disclosed.”). For example, the court in Saudi v. Valmet-Appleton, Inc., 219 F.R.D. 128 (E.D.

Wis. 2003) explained: “If [defendant’s] inability to conduct necessary discovery or prepare to

respond to witnesses could be remedied by the Court simply shrugging its metaphorical

shoulders and pushing back deadlines several months, the harsh remedy provided by Rule 37(c)

might be avoided. But, if the Court were to follow [plaintiff’s] logic, the Court could never

impose a Rule 37(c) sanction.” Id. at 134. Allowing defendants to depose the Golder experts,

by itself, also does not cure plaintiff’s late disclosures. The Golder experts and report

substantially expand plaintiff’s scope of expert testimony. Plaintiff admits that the Golder

experts are providing new substantive expert testimony, not simply rebuttal testimony: 

Ross also appears to argue that the Golder witnesses were intended as rebuttal

witnesses. As explained already, Golder is offering an opinion that existed from

early in this case, the depth and amount of the gravel on the property and

permitting issues. Their opinion, however, is coming from a geological

perspective, which is a different perspective then [sic] offered by Mr. Ross.

Dkt. #346 at 8 n.3. As a result, plaintiff argues, defendants should not be surprised by this

testimony. Id. (“[A]llowing Northwest’s experts to testify will cause no surprise to Ross.”).

Contrary to plaintiff’s argument, however, the fact that the Golder experts are providing a

“new” line of testimony, as opposed to rebuttal testimony, is even more surprising and harmful

to defendants in this late stage of litigation. Furthermore, it begs the question, if the subject of

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 15 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -16-

the Golder experts’ testimony relates to an “issue that existed from early in this case,” why did

plaintiff wait until the last day of discovery and less than three months before trial to provide the

Golder report? The late disclosure is harmful and “surprising” because it means that at the end

of the case in January of 2008, defendants unexpectedly have to scramble to meet “new” expert

disclosures that should have been made in April of 2007. As noted in defendants’ reply, this

type of extended litigation harms defendants by causing them to incur additional attorney’s fees

that plaintiff is in a much better position to absorb. See Dkt. #354 (“Ross manifestly does not

have the financial resources compared to NWP for paying attorney fees and expenses to conduct

litigation in this manner.”).

Plaintiff is also wrong to suggest that all defendants have to do to cure plaintiff’s belated

discovery is depose the Golder experts. Had plaintiff timely disclosed the Golder experts and

report, defendants would have had the right under Rule 26(a)(2)(C)(ii) to find and disclose a

new expert to contradict or rebut the Golder experts’ testimony. By disclosing the Golder report

on the last day of discovery, however, plaintiff has deprived defendants of this right. As a

result, although defendants could depose the Golder experts, absent a court sanctioned

continuance, defendants will be exposed at trial without expert testimony of their own to oppose

plaintiff’s geological experts—plaintiff has conceded the Golder experts’ testimony from a

“geological perspective” is beyond the scope of Mr. Ross’s expert testimony. 

Allowing defendants to take post-discovery depositions and supplement their expert

disclosures with an expert to rebut the Golder experts would also disrupt the Court’s schedule. 

As the Ninth Circuit has recently held, disruption of the district court’s schedule is not harmless,

a point plaintiff fails to acknowledge:

If Wong had been permitted to disregard the deadline for identifying expert

witnesses, the rest of the schedule laid out by the court months in advance, and

understood by the parties, would have to have been altered as well. Disruption to

the schedule of the court and other parties in that manner is not harmless. Courts

set such schedules to permit the court and the parties to deal with cases in a

thorough and orderly manner, and they must be allowed to enforce them, unless

there are good reasons not to. The district court did not abuse its discretion here in

refusing to permit Wong to supplement his disclosure with the additional expert

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 16 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -17-

witnesses and in barring the testimony by and relying upon those witnesses.

Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir. 2005). It is the same in

this case. As plaintiffs are well aware, the Court has routinely granted reasonable continuances

throughout this litigation on motion and by stipulation of the parties. See, e.g., Dkt. ## 291,

296, 297, 308, 317. With the Golder experts and report, however, plaintiff chose to proceed at

its peril with the late disclosure without first seeking leave of Court. The Court finds that this is

a significant factor justifying exclusion of the Golder experts and report in this case. See

Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1225, 1258 (9th Cir. 1998) (White, J.)

(affirming trial court’s exclusion of expert report and testimony because “Plaintiff never sought

an extension of time from the district court.”). 

For all these reasons, the Court finds that plaintiff’s late disclosure of the Golder experts

and report was not substantially justified or harmless and the Court grants defendants’ motion to

exclude this material under Rule 37(c)(1).

2. Bore Log and Figure F-1

For the same reasons articulated above, the Court finds that plaintiff has not shown that

the late disclosure of the Bore Log and Figure F-1 pursuant to Rule 26(a) and (e) was

substantially justified or harmless under Rule 37(c)(1). As plaintiff’s retention of the Golder

experts shows, expert testimony is needed to explain the Bore Log and related documents like

Figure F-1. See Dkt. #346 at 8; Dkt. #355, Ex. A (Golder report) at 7-8 (explaining the results

of the Bore Log). Plaintiff has itself argued that defendant’s current experts are not geologists. 

Id. Plaintiff’s failure to timely identify the Golder geological data in its Rule 26(a) and (e)

disclosures prejudiced defendants’ ability to disclose an expert to challenge plaintiff’s claims

regarding this data. To do so now would disrupt the Court’s schedule and defendants’ trial

preparation. See Wong, 410 F.3d at 1062.

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 17 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

10 Although plaintiff asserts that the five-factor test from Wendt v. Host Int’l, Inc., 125 F.3d 806,

814 (9th Cir. 1997) is the “current legal standard” applicable to this case, this legal standard was adopted

to determine the situations in which default sanctions may be appropriate. Id. (citing Wanderer v.

Johnston, 910 F.2d 652, 656 (9th Cir. 1990) (stating “[o]ur own court has fashioned a set of factors for

the district court to apply in considering whether a dismissal of default is appropriate as a Rule 37

sanction.”); Stars’ Desert Inn Hotel & Country Club, Inc. v. Hwang, 105 F.3d 521, 524(9th Cir. 1997)

(applying Wanderer’s five-factor test to the imposition of a default judgment sanction); Dkt. #346 at 6. 

Here, however, the Court is not imposing a default sanction, therefore the Court follows the Ninth

Circuit’s more recent decisions in Yeti by Molly Ltd. and Wong in imposing the Rule 37(c)(1)

exclusionary remedy.

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -18-

The Court’s rulings here are not in any respect a terminating sanction.10 Plaintiff still has

the ability to contest the gravel resource at trial. Significantly, plaintiff’s appraisal expert

rejected the gravel resource as an element of just compensation in his report. See Dkt. #336 at

Ex. E (Grose report) (“The owner has provided information on the fact that the subject site has

high quality sand and gravel deposits. However, as discussed in the highest and best use section,

the highest and best use is for rural residential development and not commercial aggregate

mining.”). And, contrary to plaintiff’s assertion, there is geological data other than the Bore Log

that was timely produced in this case. Compare Dkt. #355 at ¶6 and Ex. C, with Dkt. #346 at 4

(stating plaintiff’s contention that the Bore Log “provides the only geologic information

regarding the depth of gravel resources on the Ross property.”). Additionally, the Court will

allow plaintiff great latitude in cross-examining Mr. Ross and Mr. Barry at trial regarding the

basis for their opinions regarding the gravel resource. 

The overall purpose of the Rules of Civil Procedure is to “secure the just, speedy, and

inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Given plaintiff’s

repeated discovery lapses in this case, coupled with the available evidence for trial concerning

the gravel resource, the Court finds that granting defendants’ motion furthers this interest of

administering a just, speedy, and inexpensive determination of this proceeding.

III. CONCLUSION

For all the foregoing reasons, the Court GRANTS “Defendants’ Motions In Limine Re

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 18 of 19
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING DEFENDANTS’ MOTION

IN LIMINE REGARDING EXPERT WITNESSES -19-

Expert Witnesses” (Dkt. #335). 

DATED this 11th day of April, 2008.

A

Robert S. Lasnik

United States District Judge 

Case 2:05-cv-01605-RSL Document 356 Filed 04/11/08 Page 19 of 19