Arizona Court of Appeals Division One Holds that Rule 37(c) Does Not Prevent a Trial Court From Ordering Preclusion of Evidence as a Sanction If a Trial Date has Not Been Set.

In 2008, Maria Marquez filed a complaint against Rosario Ortega and Hayden Farms (collectively, the “Defendants”).  In January 2010, the court entered a scheduling order requiring the parties to disclose the identities and subject areas of non-expert and expert witnesses by March 31, 2010. 

In December 2010, several months after the deadline had passed, Marquez moved to extend the deadline.  Defendants opposed Marquez’s motion, arguing that Marquez failed to demonstrate “good cause” under Rule 37(c)(1).  The trial court agreed and denied Marquez’s motion. The case proceeded to trial in September 2011, and the jury found in favor of defendants.  The court entered judgment against Marquez and awarded defendants their taxable costs.  Marquez timely appealed.

The Arizona Court of Appeals affirmed the judgment, holding that the trial court did not abuse its discretion by denying Marquez’s request to extend the expert disclosure deadline.  Ariz. R. Civ. P. 37(c) provides, in relevant part, that “[a] party who fails to timely disclose information required by Rule 26.1 shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion, the information or witness not disclosed, except by leave of court for good cause shown.”  The Court rejected Marquez’s contention that Rule 37(c) prevents a trial court from ever ordering preclusion of evidence as a sanction unless a trial date has already been set, reasoning that such a rule would encourage excessive delay rather than efficient administration of justice.  Because the delay by Marquez’s attorneys was both substantial and inexcusable, the Court held that the trial court did not err when it concluded that Marquez’s failures to comply with the deadlines were not harmless.

The Court also held that the trial court did not abuse its discretion in finding that Marquez failed to establish good cause justifying an extension of the disclosure deadline.  In determining whether good cause has been established, trial courts are required to consider the following non-exclusive factors: (1) the reason for the failure to properly disclose evidence; (2) the willfulness of inadvertence of a party’s conduct; (3) prejudice to either side that may result from excluding or allowing the evidence; (4) the opposing party’s action or inaction in attempting to resolve the dispute short of exclusion; and (5) the overall diligence with which a case as been prosecuted.  Marquez was unable to demonstrate good cause in this case because she did not present any reasonable explanation for her failure to comply with the deadlines; the sanctions did not have the effect of terminating the litigation; Defendants’ attorneys repeatedly prodded Marquez’s attorneys to comply with the deadlines with limited success; and Marquez’s attorneys had demonstrated little effort to diligently prosecute her case. 

The Court also rejected Marquez’s contention that she was entitled to a culprit hearing.  A culprit hearing, as it is commonly called, allows a trial court to determine whether a party, as opposed to that party’s counsel, is responsible for a disclosure or discovery violations.  It is aimed at protecting a party from dispositive sanctions when the fault lies only with counsel.  Because the sanctions in this case were not tantamount to dismissal, the Court held that the sanction was not so harsh as to require the trial court to hold a culprit hearing.

Judge Hall authored the opinion; Judges Swann and Thumma concurred.