Exclusion of All Damages Evidence Upheld as CR 37 Sanction for Failure to Produce in Initial Disclosures and Discovery

Two employees brought an ?opt-in? collective action under the Fair Labor Standards Act. Although? ?the? ?class? ?representatives? ?disclosed commonality requires only a common core of salient facts or shared legal issues.?? The court held that it did not matter that the class?s individual? factual? situations? differed? because they sought a common legal remedy for a common legal wrong: previously existing discriminatory pay scales. ?Parra v. Bashas? Inc., damages ?calculations ?for ?themselves ?as ?part ?of their ?Initial ?Disclosures ?required ?under ?FRCP 26(a)(1)(A)(iii),?? ?they?? ?never?? ?produced?? ?such calculations for each individual opt-in plaintiff or 536 F.3d 975 (9th Callahan).Cir. 2008) (Hug, Schroeder, for the group as a whole. ?The trial court granted the employer?s motion in limine excluding all evidence of damages for the 66 plaintiffs who were not class representatives under FRCP 37(c)(1), which provides that a party who fails to provide information required by Rule 26(a) or (e) ?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 is harmless.? ?The Ninth Circuit affirmed holding that the plaintiffs? failure to disclose was not justified or harmless, that ?It was eminently reasonable for the court to require full disclosure of damages for the entire case,? and that the sanction is ?a self- executing, automatic sanction to provide a strong inducement for disclosure of material? that does not require a finding of willfulness or bad faith. Indeed, the Court of Appeals explained that ?implementation ?of ?the? sanction? is? appropriate even when a litigant?s entire cause of action . . . [will be] precluded.? ?(citation omitted). ?Hoffman v. Construction Protective Services, Inc., No. 06-56381 (9/4/08 amended 9/16/08) (Rawlinson, Silverman, M. Smith).