Sanctions for inadequate Rule 26 disclosures

Originally published by David Coale.

Plaintiff accused defendant (and his employer) of sexual assault while incarcerated at a privately-run detention center. Defense counsel had recordings of calls made by the plaintiff, from the facility, suggesting that the encounters were consensual. Counsel did not identify the recordings in their Rule 26 initial disclosures, and did not make the recordings available until the plaintiff’s deposition, after questioning her about the conversations. The district court sanctioned defense counsel for inadequate disclosure and the Fifth Circuit affirmed, concluding that “some evidence serves both substantive and impeachment functions and thus should not be treated as ‘solely’ impeachment evidence” under Rule 26. Olivarez v. GRO Group, Inc., No. 16-50191 (Dec. 12, 2016).

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