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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

SONIA LIM, surviving spouse of EDUARDO

LIM, and for the marital community comprised

thereof,

Plaintiff,

v.

FRANCISCAN HEALTH SYSTEMS, a

corporation doing business in Washington and

CATHOLIC HEALTH INITIATIVES, a

corporation doing business in Washington,

Defendants.

Case No. C06-5191 FDB

ORDER COMPELLING DISCOVERY

AND IMPOSING SANCTIONS

This matter comes before the Court on Defendants motion to compel discovery and for the

imposition of sanctions. After having reviewed all materials submitted by the parties and relied upon

for authority, the Court is fully informed and hereby grants the motion to compel discovery and

awards terms.

INTRODUCTION AND BACKGROUND

This suit for employment discrimination was filed by Plaintiff on March 10, 2006 in Pierce

County Superior Court and removed to this Court by Defendants on April 10, 2006. Trial is

scheduled for May 29, 2007. The deadline for disclosure of expert witnesses and their opinions was

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26 ORDER - 2

November 20, 2006. Discovery cutoff is January 29, 2007.

Plaintiff’s Initial Disclosures were due on August 4, 2006. Despite numerous requests for

Defendants’ counsel, they have not been produced. On August 17, 2006 Plaintiff was served with

Defendants’ First Set of Interrogatories and Request for Production. Responses were due on

September 21, 2006. They have not been produced. On August 30, Plaintiff requested a 30 day

extension to respond to the discovery requests. Defendants agreed to extend the deadline to October

2, 2006. Plaintiff failed to comply with this extension.

On November 1, 2006 the parties conducted a Rule 37 conference to resolve their discovery

dispute. During the conference Plaintiff’s counsel agreed to provide the Initial Disclosures no later

than November 6, 2006 and the discovery responses no later than November 10, 2006. Plaintiff

failed to comply with these deadlines. Defendants’ counsel then advised Plaintiff’s counsel that a

motion to compel would be filed if Plaintiff failed to provide the overdue discovery by November 14,

2006. On the due date, November 14, Plaintiff’s counsel requested that Defendant delay filing the

motion until November 20 as he was to meet with his client to complete the answers to discovery. 

Defendants again provided Plaintiff with an extension to November 20, 2006. Again, Plaintiff failed

to provide the requested discovery. This motion followed.

DUTY TO COMPLY WITH DISCOVERY REQUEST

Defendants request an order compelling Plaintiff to provide Initial Disclosures and complete

responses to the First Set of Interrogatories and Request for Production. As Defendant's statement

of facts are not contested, the Court adopts the facts as set forth in Defendant's motion. 

Fed .R. Civ. P. 26(a)(1) requires parties to disclose supportive witnesses and documents,

damages computations and insurance information “without awaiting a discovery request” at or within

14 days after the scheduling conference. Plaintiff has inexcusably failed to provide his initial

disclosures given that they were due no later August 4, 2006. Responses to interrogatories and

request for production were due September 21, 2006. These deadlines were extended by

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26 ORDER - 3

Defendants, yet remain unfulfilled.

Where the response to discovery is unsatisfactory, the party seeking discovery may file a

motion to compel discovery, including a copy of the discovery propounded and the response thereto.

Fed. R. Civ. P. 37. An "evasive or incomplete disclosure, answer, or response is to be treated as a

failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(3). It is well established that a failure

to object to discovery requests within the time required constitutes a waiver of any objection. 

Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992).

The Court finds it appropriate and necessary to compel discovery.

SANCTIONS

Rule 37(c) states: (1) A party that without substantial justification fails to disclose

information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as

required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a

trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in

lieu of this sanction, the court, on motion and after affording a opportunity to be heard, may impose

other appropriate sanctions. In addition to requiring payment of reasonable expenses, including

attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under

Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the

disclosure.

In order to avoid sanctions, Plaintiff has the burden of establishing that he had a "substantial

justification" for failure to respond and that any late disclosure is "harmless." Yeti by Molly, Ltd. v.

Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). Counsel’s purported justification is

unsubstantial. Counsel’s personal difficulties do not provide good cause for a total lack of

compliance with discovery rules. The Defendants provided numerous extensions to Plaintiff and yet

there was no response. The Court finds that a sanction in the amount of a reasonable attorney's fee

incurred by Defendants in bringing this discovery motion is appropriate. The Court finds that

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$1,260.00 is a reasonable compensation for the fees incurred by Defendants in having to bring this

action.

CONCLUSION

The Court having reviewed the pleadings and the remaining record, and for the reasons set

forth above,

IT IS HEREBY ORDERED:

(1) Defendants’ Motion to Compel Discovery [Dkt. #13] is GRANTED,

(2) No later than December 15, 2006, Plaintiff must provide full and complete answers

and responses to Defendants’ First Set of Interrogatories and Requests for Production and provide

Initial Disclosures.

(3) No later than December 15, 2006, Plaintiff and /or counsel for Plaintiff must pay to

Defendants the sum of $1,575.00, as terms for having filed this motion to compel.

(4) Failure to comply with this Order may result in immediate dismissal of this action,

with prejudice.

DATED this 8th day of December, 2006.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

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