FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIBERTY INSURANCE CORPORATION;

LM GENERAL INSURANCE COMPANY,

Plaintiffs-Appellees,

v.

YVONNE BRODEUR; JERRY 

BRODEUR,

Defendants-Appellants,

and

ANGELIQUE VAN-VLIET; ELIAS 

MENESES,

Defendants.

No. 21-15444

D.C. No.

2:19-cv-00457-

APG-VCF

OPINION

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

Argued and Submitted April 12, 2022

Pasadena, California

Filed July 28, 2022
2 LIBERTY INS. CO. V. BRODEUR

Before: Consuelo M. Callahan and Lawrence VanDyke, 

Circuit Judges, and David A. Ezra,* District Judge.

Opinion by Judge VanDyke

SUMMARY**

Diversity/Insurance Coverage

The panel reversed the district court’s order imposing 

sanctions on defendant homeowners pursuant to Fed. R. Civ. 

P. 37(c)(1) and remanded for a new trial in an action brought 

by Liberty Insurance Corporation seeking a judicial 

determination that defendants were not entitled to any 

coverage under Liberty’s homeowner’s insurance policy in 

an underlying lawsuit for damages arising from an accident 

involving defendants’ all-terrain vehicle.

While Liberty sought to rely on a general coverage 

exclusion, it was aware that its policy also contained an 

exception to the general exclusion if the homeowners, 

Yvonne and Jerry Brodeur, could show that the all-terrain 

vehicle (ATV) was not subject to motor vehicle registration 

and was used to “service” their cabin. Defendant Jerry 

Brodeur was the only witness who testified during a bench 

trial. After the trial concluded, the district court (at Liberty’s 

request) imposed Rule 37(c)(1) sanctions on the Brodeurs 

* The Honorable David A. Ezra, United States District Judge for the 

District of Hawaii, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
LIBERTY INS. CO. V. BRODEUR 3

for failing to disclose a witness. The court also excluded 

Jerry’s testimony about whether the ATV was registered and 

used to service the cabin, based on the theory that he had not 

been properly disclosed as a witness. The district court then 

ruled that, without Jerry’s testimony, there was “insufficient 

evidence to show the ATV was used to service the cabin at 

any time,” and thus found that the Brodeurs were not entitled 

to coverage. 

The panel held that because the Brodeurs complied with 

Rule 26(a)(1)(A)(i)’s requirement to disclose “individuals 

likely to have discoverable information—along with the 

subjects of that information” for the purpose of identifying 

potential fact witnesses, sanctions under Rule 37(c)(1) were 

not justified. But even if the Brodeur’s had not complied 

with Rule 26, the district court abused its discretion by 

imposing Rule 37(c)(1) sanctions without analyzing 

(1) whether the alleged defects in the disclosures were 

harmless and (2) whether the defects involved willfulness, 

fault, or bad faith, as required by R & R Sails, Inc. v. Ins. Co. 

of Penn., 673 F.3d 1240 (9th Cir. 2012).

COUNSEL

Jerome R. Bowen (argued), Bowen Law Offices, Las Vegas, 

Nevada, for Defendants-Appellants Yvonne Brodeur and

Jerry Brodeur.

Craig A. Mueller, Mueller & Associates Inc., Las Vegas, 

Nevada, for Defendant-Appellant Elias Meneses.

Amy M. Samberg (argued), Dylan P. Todd, and Lee H. 

Gorlin, Clyde & Co. US LLP, Las Vegas, Nevada, for 

Plaintiffs-Appellees.
4 LIBERTY INS. CO. V. BRODEUR

OPINION

VANDYKE, Circuit Judge:

On a trip to a family cabin in Kane County, Utah, Chase 

Stewart and Elias Meneses crashed an all-terrain vehicle 

(ATV) while driving on nearby property. The ATV crushed 

Meneses’s arm, and as a result he sued Stewart’s parents, 

Gerrard (Jerry) and Yvonne Brodeur, who own the cabin and 

the ATV. The Brodeurs sought coverage for the accident 

under a Liberty Insurance Corporation (Liberty) 

homeowner’s insurance policy. After determining that the 

accident was generally excluded from coverage, Liberty 

filed this lawsuit seeking a judicial determination that the 

Brodeurs were not entitled to any coverage under the Liberty 

policy. Importantly, while Liberty sought to rely on a 

general coverage exclusion, Liberty was aware that its policy 

also contained an exception to the general exclusion such 

that the accident might be covered if the Brodeurs could 

show that the ATV was not subject to motor vehicle 

registration and was used to “service” the Brodeurs’ cabin.

Jerry Brodeur was the only witness who testified during 

a bench trial. After the trial concluded, the district court (at 

Liberty’s request) imposed Rule 37(c)(1) sanctions on the 

Brodeurs. The court also excluded Jerry’s testimony about 

whether the ATV was registered and used to service the 

cabin, based on the theory that he had not been properly 

disclosed as a witness. The court interpreted the Brodeur’s 

initial disclosures as allowing Jerry to testify only about the 

underlying tort lawsuit between the Meneses and the 

Brodeurs, not about facts relevant to the Liberty policy at 

issue in the current lawsuit. The district court then ruled that, 

without Jerry’s testimony, there was “insufficient evidence 

to show the ATV was used to service the cabin at any time,” 

and thus found that the Brodeurs were not entitled to 
LIBERTY INS. CO. V. BRODEUR 5

coverage. The Brodeurs appealed, asking this court to 

reverse and remand for a new trial.

We conclude that because the Brodeurs complied with 

Rule 26(a)(1)(A)(i)’s requirement to disclose “individuals 

likely to have discoverable information—along with the 

subjects of that information” for the purpose of identifying 

potential fact witnesses, sanctions under Rule 37(c)(1) were 

not justified. But even if the Brodeur’s had not complied 

with Rule 26, the district court abused its discretion by 

imposing Rule 37(c)(1) sanctions without analyzing 

(1) whether the alleged defects in the disclosures were 

harmless and (2) whether the defects involved willfulness, 

fault, or bad faith, as required by R & R Sails, Inc. v. Ins. Co. 

of Penn., 673 F.3d 1240 (9th Cir. 2012).

BACKGROUND

I. Factual Background

Jerry and Yvonne Brodeur live in Las Vegas, Nevada 

and own a cabin in Kane County, Utah. Beginning on July 

16, 2015, and continuing through at least July 16, 2016, the 

Brodeurs insured their cabin through a homeowners policy 

issued by Liberty Insurance Corporation. In May 2016, the 

Brodeurs took Yvonne Brodeur’s son, Chase Stewart, to the 

cabin along with Chase’s friend, Elias Meneses. The 

Brodeurs own a Yamaha Rhino ATV, which they brought to 

the cabin and allowed Meneses to ride in as a passenger with 

Stewart driving. While Stewart drove the ATV on nearby 

property not owned by the Brodeurs, the ATV flipped and 

crushed Meneses’s arm.
6 LIBERTY INS. CO. V. BRODEUR

II. Procedural Background

Meneses sued the Brodeurs for his injuries in Nevada 

state court. The Brodeurs sought coverage under the Liberty 

homeowner’s insurance policy on the cabin, as well as a 

Liberty homeowner’s insurance policy on their primary 

residence in Las Vegas and a Liberty automobile insurance 

policy. Liberty then filed this action in federal court, seeking 

a judicial declaration that none of the Liberty policies 

provided coverage for the Brodeurs’ claim. At summary 

judgment, the district court found that neither the Las Vegas 

homeowner’s policy nor the automobile policy covered the 

Brodeur’s ATV accident claim.

On February 8, 2021, the district court held a bench trial 

on the issue of whether the remaining Utah homeowner’s 

policy covered the ATV accident. The court found that the 

Utah homeowner’s policy generally excluded coverage for 

an ATV accident occurring away from the property. But the 

policy included an exception to the general exclusion 

(hereinafter the “exception”), providing that the Brodeurs 

could be entitled to coverage if the ATV was (1) a vehicle 

not subject to motor vehicle registration and (2) used to 

“service” the cabin. Liberty’s amended complaint identified 

the exception.

Long before the trial, the Brodeurs served Liberty with 

initial disclosures and included Jerry Brodeur as an 

“individual likely to have discoverable information” 

pursuant to Rule 26(a)(1)(A)(i). The disclosures stated that 

Brodeur was likely to have information about “the claims of 

the underlying case and the damages at issue.” Liberty never 

objected to the Brodeurs’ initial disclosures and the Brodeurs 

never supplemented them.
LIBERTY INS. CO. V. BRODEUR 7

Years later, on the morning of the bench trial, Liberty 

moved for judgment under Federal Rule of Civil Procedure 

52(c), arguing that the Brodeurs’ Rule 26 disclosures were 

insufficient to put Liberty on notice of Jerry Brodeur’s 

anticipated testimony and that the testimony concerning the 

ATV was therefore barred by both the rule and Liberty’s 

motion in limine. The district court allowed Jerry to testify 

but informed the parties it would rule on the issue after trial. 

Jerry testified about the ATV, its use to maintain the Utah 

property (to remove wood, as a snowplow, to move dirt, and 

to pick up food in town), and whether the vehicle was 

registered or required to be registered. Jerry Brodeur was 

the only witness who testified.

After trial, the district court—purporting to apply 

Federal Rule of Civil Procedure 26(a)(1)(A)(i)—excluded 

much of Jerry’s testimony relevant to the Liberty policy by 

sanctioning the Brodeurs under Federal Rule of Civil 

Procedure 37(c)(1). The court used the sanction to limit the 

testimony to “the facts and claims of the underlying state 

court lawsuit,” and exclude testimony about the exception.1 

Excluding that testimony led the district court to rule that the 

Brodeurs failed to present sufficient “evidence to show [that] 

the ATV was used to service the cabin at any time,” and that 

“[b]ecause the Brodeurs have not satisfied their burden of 

proof as to the second part of the exception (that the ATV 

was used to service the cabin), I need not resolve whether 

the ATV was subject to motor vehicle registration in any 

jurisdiction.” The court ultimately concluded that 

“[b]ecause there is no evidence [that] the ATV was used to 

service the Brodeurs’ cabin, it does not fall within the 

1 The court also found that Meneses’s initial disclosures barred Jerry 

from testifying about the Liberty policy. The Meneses originally 

appealed but settled their case and voluntarily dismissed their appeal.
8 LIBERTY INS. CO. V. BRODEUR

exception to the exclusion. Therefore, the Brodeurs are not 

entitled to coverage under the Policy for the ATV accident 

that is the subject of the state court lawsuit.” The Brodeurs 

appealed, arguing that the district court abused its discretion 

by imposing Rule 37(c)(1) sanctions.

JURSDICTION AND STANDARD OF REVIEW

This court has jurisdiction under 28 U.S.C. § 1291. “We 

review the imposition of discovery sanctions for abuse of 

discretion.” Yeti by Molly Ltd v. Deckers Outdoor Corp., 

259 F.3d 1101, 1105 (9th Cir. 2001) (citing Payne v. Exxon 

Corp., 121 F.3d 503, 507 (9th Cir. 1997)). Specifically, 

because the district court imposed discovery sanctions 

pursuant to Rule 37(c)(1) without resolving a disputed 

question of law, we analyze its factual determinations and 

legal conclusions for abuse of discretion. See Goodman v. 

Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th 

Cir. 2011); Yeti by Molly, Ltd., 259 F.3d at 1106.

“A district court abuses its discretion if it bases its 

decision on an erroneous view of the law or on a clearly 

erroneous assessment of the evidence.” Ingenco Holdings, 

LLC v. Ace Am. Ins. Co., 921 F.3d 803, 808 (9th Cir. 2019) 

(cleaned up); see also United States v. Working, 287 F.3d 

801, 807 (9th Cir. 2002) (explaining that a district court 

abuses its discretion when a ruling is guided by erroneous 

legal conclusions). Likewise, “[a district] court abuses its 

discretion when it fails to apply the correct legal standard or 

bases its decision on unreasonable findings of fact.” Briseño 

v. Henderson, 998 F.3d 1014, 1022 (9th Cir. 2021) (quoting 

Nachshin v. AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 

2011)).
LIBERTY INS. CO. V. BRODEUR 9

DISCUSSION

The district court abused its discretion for three reasons 

by imposing Rule 37(c)(1) sanctions to exclude material 

portions of Jerry Brodeur’s testimony. First, the district 

court abused its discretion when it imposed the sanctions for 

failing to identify a witness, because the Brodeurs’ 

disclosures properly identified Jerry Brodeur as a witness 

under Rule 26(a)(1)(A)(i). Second, even if the disclosures 

were inadequate under Rule 26(a)(1)(A)(i), the purported 

defect—that the Brodeurs disclosed Jerry could testify only 

about the claims in the “underlying lawsuit” as opposed to 

disclosing that he could testify about the claims in the 

“current lawsuit”—was harmless because Liberty filed this 

action for the sole purpose of determining its coverage 

obligations to the Brodeurs and Jerry Brodeur was the only 

witness who testified about facts relevant to his Liberty 

insurance policy. Finally, because the district court’s Rule 

37(c)(1) sanctions amounted to dismissal of the case, it 

abused its discretion by imposing them without analyzing 

whether the Brodeurs’ alleged noncompliance with 

disclosure obligations involved willfulness, fault, or bad 

faith. See R & R Sails, Inc., 673 F.3d at 1247.

I. Because the Brodeurs Adequately Identified Jerry 

Brodeur as a Potential Fact Witness Under Rule 

26(a)(1)(A)(i), the District Court Abused its 

Discretion When it Imposed Rule 37(c)(1) Sanctions.

The district court abused its discretion by imposing Rule 

37(c)(1) sanctions for failure to disclose a witness because 

the Brodeurs properly identified Jerry Brodeur as a potential 

fact witness under Rule 26(a)(1)(A)(i). See Cadkin v. Loose, 

569 F.3d 1142, 1147 (9th Cir. 2009) (“A district court abuses 

its discretion when its decision is based on an inaccurate 

view of the law or a clearly erroneous finding of fact.” 
10 LIBERTY INS. CO. V. BRODEUR

(cleaned up)). Rule 26(a)(1)(A)(i) requires parties to 

disclose “the name and, if known, the address and telephone 

number of each individual likely to have discoverable 

information—along with the subjects of that information—

that the disclosing party may use to support its claims or 

defenses . . . .” Fed. R. Civ. P. 26(a)(1)(A)(i). The rule 

requires identification of potential witnesses because “‘[a] 

major purpose’ of the initial disclosure requirements ‘is to 

accelerate the exchange of basic information about the case 

and to eliminate the paper work involved in requesting such 

information.’” R & R Sails Inc., 673 F.3d at 1246 (citing 

Fed. R. Civ. P. 26 advisory committee’s note to 1993 

Amendments). Rule 37(c)(1) further clarifies the 

importance of identifying potential witnesses, stating that 

“[i]f 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 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) (emphasis added).

Here, the Brodeurs timely served Rule 26 disclosures on 

Liberty that stated both Yvonne and Jerry Brodeur were 

available to testify “[r]egarding the claims of the underlying 

case and the damages at issue,” and provided their contact 

information. By doing so, the Brodeurs complied with 

Rule 26’s requirement that they identify potential witnesses 

with discoverable information. But instead of applying Rule 

26(a)(1)(A)(i) as a rule requiring identification of 

individuals “likely to have discoverable information” at the 

outset of discovery, the district court interpreted the rule as 

placing substantive limits on Jerry’s trial testimony two 

years later. Fed. R. Civ. P. 26(a)(1)(A)(i).
LIBERTY INS. CO. V. BRODEUR 11

Under the district court’s view, it could bar discussion of 

any discoverable information it deemed to be outside of 

disclosed “subjects of that information.” Id. The court 

decided that because the Brodeur disclosure used the term 

“underlying case,” Jerry should be allowed to testify only 

about the underlying state court lawsuit—not about material 

facts at issue in the federal lawsuit. To enforce that limiting 

view of Rule 26, the district court concluded that Rule 

37(c)(1) sanctions could be used to exclude portions of 

Jerry’s testimony relating to the Liberty policy. But the 

district court was wrong about this too.

Rule 37(c)(1) provides that sanctions are warranted for 

failure to comply with Rule 26(a)(1)(A)(i) in two specific 

situations. First, it provides that when a witness is not 

disclosed by a party then, as a sanction, that witness cannot 

testify. See Fed. R. Civ. P. 37(c)(1) (“If a party fails to . . . 

identify a witness as required by Rule 26(a),” the 

unidentified witness is not allowed to “supply evidence on a 

motion, at a hearing, or at a trial, unless the failure was 

substantially justified or is harmless.”). Second, it provides 

that if a party fails to disclose discoverable information (like 

documents or electronically stored information required by 

Rule 26(a)(1)(ii)) then the party cannot rely on that 

undisclosed information as evidence. Id. (“If a party fails to 

provide information . . . as required by Rule 26(a) . . . the 

party is not allowed to use that information . . . to supply 

evidence on a motion, at a hearing, or at a trial, unless the 

failure was substantially justified or was harmless.”). What 

the rule does not do is grant the district court broad power to 

pick and choose portions of witness testimony to exclude as 

a sanction because it concludes those portions of testimony 

were not encompassed “within the scope of the Rule 26(a) 

disclosures.” If there is a rule for that, under its plain text it 

isn’t Rule 37(c)(1).
12 LIBERTY INS. CO. V. BRODEUR

Because the Brodeurs properly disclosed Jerry Brodeur 

as a potential witness under Rule 26(a)(1)(A)(i), the district 

court abused its discretion by imposing Rule 37(c)(1) 

sanctions. See Golden v. Cal. Emergency Physicians Med. 

Grp., 782 F.3d 1083, 1089 (9th Cir. 2015) (“A district court 

abuses its discretion when . . . it applies an incorrect rule of 

law.”).

II. The District Court Abused its Discretion by Imposing 

Rule 37(c)(1) Sanctions Without Considering 

Whether Defects in the Brodeur Disclosures Were 

Harmless or Substantially Justified.

Second, even if the district court had been correct that 

the Brodeur disclosures were inadequate under Rule 

26(a)(1)(A)(i), it abused its discretion by imposing Rule 

37(c)(1) sanctions without considering whether defects in 

the disclosures were harmless or substantially justified. See 

Fed. R. Civ. P. 37(c)(1) (“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 on a motion, at a hearing, or at a 

trial, unless the failure was substantially justified or is 

harmless.” (emphasis added)); see also Barnett v. Norman, 

782 F.3d 417, 421 (9th Cir. 2015) (“A district court abuses 

its discretion when it does not apply the correct law or 

erroneously interprets the law.” (internal citation omitted)). 

Ninth Circuit caselaw interpreting Rule 37(c)(1) makes clear 

that exclusion of evidence under Rule 37(c)(1) is not 

appropriate if the “failure to disclose the required 

information is substantially justified or harmless.” Yeti by 

Molly Ltd., 259 F.3d at 1106. To that end, district courts 

have identified “[s]everal factors to guide the determination 

of whether substantial justification and harmlessness exist, 

including (1) prejudice or surprise to the party against whom 
LIBERTY INS. CO. V. BRODEUR 13

the evidence is offered; (2) the ability of that party to cure 

the prejudice; (3) the likelihood of disruption of trial; and 

(4) bad faith or willfulness in not timely disclosing the 

evidence.” Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 

237, 242 (D. Nev. 2017). Here, the district court abused its 

discretion because it completely failed to consider whether 

any defect in the Brodeur disclosures was harmless or 

substantially justified before imposing sanctions. Instead, it 

simply concluded that “I may exclude from trial any 

evidence that is not within the scope of the Rule 26(a) 

disclosures.”

It seems very unlikely that Liberty was prejudiced or 

surprised by Jerry Brodeur’s testimony about the family’s 

ATV. Liberty filed the federal action for the sole purpose of 

determining whether the Brodeurs were entitled to coverage 

under the Liberty policy, and even identified the relevant 

exception in its amended complaint. The exception applies 

only if the ATV is (1) a vehicle that is not subject to motor 

vehicle registration and (2) used to “service” the cabin. As 

the owner of the cabin and ATV, as well as the only witness 

called to testify at trial, it is entirely unsurprising that Jerry 

Brodeur would testify on these subjects.

Because the district court failed to consider whether any 

defect in the Brodeur disclosures was harmless or 

substantially justified, the district court abused its discretion 

by imposing Rule 37(c)(1) sanctions.

III. The District Court Abused its Discretion by 

Failing to Adequately Analyze Whether the 

Brodeurs’ Purported Noncompliance with Rule 

26(a)(1)(A)(i) Involved Willfulness or Fault.

Finally, because the sanctions imposed by the district 

court amounted to dismissal of the case, the court abused its 
14 LIBERTY INS. CO. V. BRODEUR

discretion by relying on erroneous conclusions and failing to 

adequately analyze whether the Brodeurs acted with 

willfulness or fault. See R & R Sails, Inc., 673 F.3d at 1247 

(explaining that even when a party clearly violates Rule 

26(a)(1)(A), the district court is still required to consider 

other factors before precluding evidence or witnesses as a 

Rule 37(c)(1) sanction, particularly when that sanction 

amounts to dismissal of claims); Meier v. Colvin, 727 F.3d 

867, 869 (9th Cir. 2013) (“A district court abuses its 

discretion when it fails to apply the correct legal rule or its 

application of the correct legal rule is illogical, implausible 

or without support in inferences that may be drawn from the 

facts in the record.” (citing United States v. Hinkson, 

585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc))). When 

a district court imposes a sanction that amounts to dismissal, 

it is required to consider whether the noncompliance 

justifying the sanction “involved willfulness, fault, or bad 

faith . . . and also to consider the availability of lesser 

sanctions.” R & R Sails, Inc., 673 F.3d at 1247 (internal 

citations omitted).

Here, the court’s sanction was exclusion of Jerry 

Brodeur’s testimony. After excluding the testimony, the 

court explained that there was “insufficient evidence to show 

the ATV was used to service the cabin at any time.” Whether 

or not the ATV was used to service the cabin was one of two 

pieces of evidence the Brodeurs needed to provide to be 

entitled to coverage under the exception. Considering that 

Jerry Brodeur was the only witness who testified at the trial, 

and that the district court ultimately found there was 

“insufficient evidence” to support the exception, the district 

court’s sanction excluding relevant portions of his testimony 

was “claim-dispositive.”
LIBERTY INS. CO. V. BRODEUR 15

Because the district court found that excluding Jerry’s 

testimony was “claim-dispositive,” it offered a conclusory 

R & R Sails analysis. The court did “not find the Brodeurs’ 

disclosures to be in bad faith.” But it concluded that the 

deficiencies were both willful and the fault of the Brodeurs. 

In the court’s view, the Brodeurs acted “willfully” and were 

at “fault”—not because they acted disobediently, 

deceitfully, knowingly, or otherwise dishonestly—but 

because the disclosures “were within their control, they had 

enough information to make appropriate disclosures, and 

there was nothing accidental about them.” But see Henry v. 

Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir. 1993) 

(citing Fjelstad v. Am. Honda Motor Co., Inc., 762 F. 2d 

1334,1341 (9th Cir. 1985)) (explaining that the Ninth Circuit 

“has stated that ‘disobedient conduct not shown to be outside 

the control of the litigant’ is all that is required to 

demonstrate willfulness, bad faith, or fault.”). In other 

words, the district court found the Brodeurs were 

disobedient because they complied with Rule 26 and served 

disclosures, but did so improperly. Not only is the district 

court’s view of willfulness and fault contrary to Henry, but 

it would also render the R & R Sails willfulness and fault 

analysis meaningless—every initial disclosure served by 

every party in every case is nonaccidental and within the 

serving party’s control. Such a view is plainly erroneous.

CONCLUSION

For the foregoing reasons, we reverse the district court’s 

order imposing sanctions and remand this case to the district 

court for a new trial.

REVERSED and REMANDED.