In XMission, L.C. v. Adknowledge, Inc., Case No. 15-277 (D. Utah, June 24, 2016), Plaintiff is an internet service provider that sued Defendant under the CAN-SPAM Act. At issue is over 100,000 emails. Before the completion of discovery, Plaintiff filed a Motion for Summary Judgment. In response, Defendant filed a Motion under FRCP 56(d) to stay Plaintiff’s Motion until the close of discovery.
In its Motion, Defendant stated it needed to obtain discovery from third party publishers of the emails as well as its own policies and procedures on anti-spam, which it believed could be used to defeat the Motion for Summary Judgment. Plaintiff, upon reviewing the Rule 56(d) Motion, filed its own Motion under FRCP 37(c) seeking to bar Defendant from using this information to defend against summary judgment on the basis that Defendant did not disclose the existence of such information in its Initial Disclosures.
Defendant did not identify any third party publishers as witnesses and did not produce any anti-spam policies or procedures; however, Defendant’s Initial Disclosures did disclose a witness who could testify as to such policies and procedures. They also disclosed that policies and procedures, including internal databases with metadata, were available. Document requests were sent, and the parties went back and forth about the sufficiency of Defendant’s production.
FRCP 37(c) applies when a party violates FRCP 26(a) and (e) with respect to disclosures. The court held that Defendant violated FRCP 26(a) and (e) by failing to identify witnesses, failing to produce documents that may support their claims or defenses, and failing to supplement. The court also found that the failures were not justified and were not harmless, and therefore, FRCP 37(c) applied. However, the court determined that excluding the evidence was too far afield. Instead, the court awarded Plaintiff attorneys’ fees and costs for filing its FRCP 37(c) motion.