MEMORANDUM OPINION AND ORDER
MARTIN C. CARLSON, Magistrate Judge.
Procedural History and Statement of Facts
Ronald Miller commenced this lawsuit as a putative class action by filing a complaint on August 28, 2012, under the Fair Credit Reporting Act (FCRA). (Doc. 1.) After detailing the legal background of both the FCRA and the OFAC list, a list maintained by the United States Treasury Department's Office of Foreign Assets Control, ("OFAC"), of entities and individuals identified as hostile to the United States
Beneath the heading "End of Credit Report," the October 13, 2011, file stated as follows:
(Doc. 1, ¶31.)
Miller's complaint then alleges that his Trans Union file contained the following additional recital:
The files states:
(Doc. 1, ¶34.)
Construing this declaration as implying that Miller has some connection to persons on the OFAC, Miller has sued Trans Union, alleging, in part, that Trans Union failed to "clearly and accurately disclose to the consumer . . . All information in the consumer's file at the time of the request . . . ." 15 U.S.C. § 1681g (a)(1). In the course of this litigation we have previously denied Trans Union's motion to dismiss this action entirely, holding that Miller's complaint states a plausible claim under §1681g of the FCRA which imposes a duty of accuracy on credit files shared with a consumer at the consumer's request by a credit reporting agency. The elements of an FCRA claim under §1681g, which we found were sufficiently pleaded in this complaint, are: (1) a consumer request; (2) a reporting agency response; and (3) and a failure to "clearly and accurately disclose to the consumer . . . All information in the consumer's file at the time of the request . . . ." 15 U.S.C. § 1681g (a)(1). (Docs. 50, 56, and 57.)
The parties are now litigating a motion for class certification relating to the FCRA claim. (Doc. 79.) As part of this process we previously set a schedule for class certification discovery and the filing of a motion for class certification. (Doc. 68.) Notably, our prior case management order did not expressly call for the early disclosure of expert reports relating to class certification, and when the parties jointly requested extensions of this class certification discovery deadline to November 2014, neither party requested that a deadline for expert report disclosures also be set as part of this scheduling order. (Docs. 71-74.)
The plaintiff has now filed a motion for class certification, (Doc. 79.), which Trans Union has opposed. (Docs. 83-85. ) In connection with its opposition to this class certification motion, on January 26, 2015, Trans Union has filed a declaration of Victor Stango, an associate professor of management at the University of California, Davis, who proffers himself to the court as an expert on consumer behavior in financial service markets. (Doc. 85.) The plaintiff has moved to exclude consideration Dr. Stango's declaration, (Doc. 91.), arguing that Trans Union's alleged failure to disclose Dr. Stango's report in November 2014 when the general class certification discovery deadline passed warrants the sanction of preclusion of this information and evidence during these class certification proceedings. This motion has been fully briefed by the parties, (Docs. 91, 92, and 93.), and at the request of the parties oral argument was held on this motion on April 17, 2015.
For the reasons set forth below, the motion will be denied.
Rulings regarding the proper scope of discovery, and discovery sanctions, are matters consigned to the court's discretion and judgment. Thus, it has long been held that decisions regarding Rule 37 motions are "committed to the sound discretion of the district court."
This discretion is guided, however, by certain basic principles. Where, as here, we are asked to wholly exclude evidence as a sanction for an alleged failure to make timely discovery disclosures we begin our analysis with the proposition that: "`[T]he exclusion of critical evidence is an `extreme' sanction, not normally to be imposed absent a showing of willful deception or `flagrant disregard' of a court order by the proponent of the evidence.'
Recognizing the extreme nature of this sanction, and the fact that exclusion of evidence is typically reserved for cases marked by a flagrant disregard of a clear direction, it has also been held that: "In considering whether the exclusion of evidence is an appropriate sanction for failure to comply with discovery duties, we must consider four factors: (1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or wilfulness in failing to comply with a court order or discovery obligation.
Applying these benchmarks we find that the extreme sanction of exclusion of Dr. Stango's declaration is not warranted here. At the outset, we note that it has not been clearly shown that a culpable failure of discovery has occurred in this instance. The case management order governing class certification discovery did not prescribe a specific deadline for disclosure of expert reports, and despite joint requests for extension of this class certification discovery deadline, neither party requested that we impose an expert report deadline on this aspect of the discovery process. Therefore, while we would commend discovery transparency to all parties, we cannot say that there has been a culpable breach of a court order with respect to the timing of the disclosure of Dr. Stango's report. Further, we note that many courts have permitted the disclosure of expert witness reports during briefing of class certification issues, and have not sanctioned the failure to provide these reports beforehand.
Given the ambiguity in our discovery order, and the lack of clear legal authority imposing any further discovery obligations upon Trans Union we conclude that Miller has not made a showing of bad faith "willful deception or `flagrant disregard' of a court order by the proponent of the evidence,'"
We also conclude that allowing consideration of this evidence on class certification would not disrupt the orderly and efficient resolution of the case, yet another factor which weighs against exclusion of this report. In this regard, we note that Dr. Stango's report and conclusions have been available to all parties since January 2015. Thus, some four months have elapsed since this disclosure was made. Further, we have scheduled oral argument on the class certification motion for May 8, 2015, thus ensuring that the disclosure of this specific report in January 2015 does not work a sudden and unfair prejudice upon the plaintiff in this case. In short, having been aware of the Stango report now since January 2015, we are confident that the plaintiff is now fully prepared to meet the conclusions set forth in that report. Of course, if the plaintiff concludes that he is not fully prepared to address that report on class certification, he may seek relief in the form of an order allowing additional time for discovery, or some other lesser remedy, and we are prepared to consider such a request. However, in this setting, where the plaintiff has eschewed other relief in favor of exclusion of Dr. Stango's declaration, we do not believe that a balancing of the equities favors granting this extreme form of relief.
Finding that a weighing of the discretionary factors which govern the exclusion of evidence as a sanction for an alleged discovery violation do not favor exclusion of Dr. Stango's declaration, for the foregoing reasons, the motion to exclude will be denied.
An appropriate order follows.
The Motion to Exclude the Declaration of Victor Stango (Doc. 91.) is DENIED.