Federal Rule of Civil Procedure (FRCP) 34 requires production of documents within 30 days after service of a request for production and requires the parties to timely supplement incomplete responses. See Fed. R. Civ. P. 34(b)(2)(A) and 26(e). Failure to timely produce expert reports or reliance materials will lead to automatic exclusion pursuant to FRCP 37(c). The recent decision by the U.S. District Court Middle District of Florida provides a cautionary tale for practitioners engaging in untimely discovery.
In Zurich American Insurance Co. v. John Walker Hardin, et al., No. 8:14-cv-775, 2020 WL 1150981 (M.D. Fla. Mar. 10, 2020), Zurich American Insurance Company asked the district court to bar various documents not produced during fact discovery, as well as corresponding expert opinions based on those documents. Zurich alleged that it had collected only a small fraction on judgments because John Edward Walker Hardin, the sole owner of Leasing Resources, depleted Leasing Resources’ assets and transferred Leasing Resources’ business to Cohesive Networks, Inc., another Hardin-owned entity. The defendants disclosed the identity of their accounting expert, and Zurich served a subpoena for deposition and requested the documents considered for the defense expert’s report. A few days before the deposition, and after the discovery period closed, the defendants produced the documents to Zurich. After comparing the documents, Zurich determined that the defense expert was given more than 300 documents that had not been produced in discovery. Consequently, Zurich filed a motion to bar documents not produced during fact discovery and requested an order excluding the withheld documents at trial, prohibiting the expert from offering any opinions related to the withheld documents, and requested monetary sanctions for reasonable expenses, including attorney fees, incurred due to the discovery violation.