Failure to Produce Recordings Stored on Computer Results in Exclusion

Shank v. Kitsap County, et al., 2005 WL 2099793 (W.D.Wash. Aug. 30, 2005)

Charles Shank (“Shank”) sued Kitsap County, a Washington State Municipal Corporation, and several individuals (collectively “Kitsap”) in connection with alleged employment-related violations under 42 USC �� 1983. Claims included: failure to receive a pay raise, hostile work environment, and failure to receive a promotion.

Kitsap served Shank with interrogatories and requests for production on February 22, 2005, in which documents were defined to include “electronic recordings” and “tape recordings.” Shank failed to produce requested materials and filed a motion for in camera review on May 31. However, he failed to identify what he wanted reviewed in camera. Kitsap filed a motion to compel discovery on June 2. The motion for in camera review, which was revealed to involve electronic recordings, was dismissed via stipulated order and court rulings on related issues were deferred.

On June 20, Kitsap was granted its motion to compel discovery and the court also ordered sanctions. Shank submitted answers to the interrogatories and paid $300 in sanctions and $270 in attorneys’ fees.

During Shank’s final deposition on July 13, he revealed that he had a tape and electronic recordings which were within the scope of the discovery requests yet had not been produced. Most recordings were on his computer, and one was on tape. Four recordings were produced on July 19 and 20, and a cassette was produced on August 16.

Kitsap filed a motion for dismissal of several claims or an order prohibiting Shank from introducing at trial the recordings and statements made by persons who were recorded. In support of this motion, Kitsap argued that Shank’s failure to produce the recordings was willful, wanton, and in bad faith. Kitsap claimed that that the motion for in camera review evidenced the wrongful nature of the withholding since Shank clearly had possession the recordings, and lesser sanctions had already been issued and had proven ineffective. Shank responded claiming that the delay in producing the tape was inadvertent. Kitsap countered by noting that the one delayed tape is not the only issue – Shank violated the Order Compelling Discovery by not producing evidence until after the deposition.

The court employed the 5 factor test from Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) in connection with the motion for dismissal, and found that excluding the tapes from evidence would be a just result under the circumstances. Shank’s argument that the recordings were on his computer and not easily copied was not persuasive. “Much of present day discovery is contained on computers. It is both parties’ duty to comply with the rules of discovery and court orders despite technical difficulties.”