Paramount Pictures Corporation v. ReplayTV, Inc., Joint Stipulation ...

12345678910111213141516171819202122232425262728Defendants’ insistence on using crucial information that they refuse toprovide to Plaintiffs is indefensible. It is long since settled that it is unfair andimpermissible for a party to use in litigation information or documents that it failsto produce to the other side in a timely manner -- much less information that a partyrefuses to produce at all. 49/Since Defendants have refused to provide Plaintiffs with contact informationfor their customers and testers, the Court should preclude Defendants from usingthat information to gather any evidence in this case, whether by contacting theindividuals directly or by using a third party firm to do so. In the interests ofavoiding unnecessary discovery litigation, and since (as discussed above) therelevant information can be gathered efficiently and unobtrusively by electronicmeans, Plaintiffs are prepared to take Defendants at their word that they do not wishtheir customers to be involved in the discovery process. It would be intolerable,however, for Defendants to be allowed -- as they propose -- to be able to collectevidence from thousands of percipient witnesses while making it impossible forPlaintiffs to contact the same witnesses.49/See, e.g., United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365,1369-71 (9th Cir. 1980) (affirming district court’ s order precluding governmentfrom introducing evidence where government failed to supply evidence in timelymanner); Smith v. Commissioner, 800 F.2d 930, 934 (9th Cir. 1986) (affirming“ sanctions order that prevented taxpayers from presenting any documentaryevidence at trial other than that which has been discovered.” ) (emphasis added)(citation omitted); North Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d1447, 1451 (9th Cir. 1986) (“ Last minute tender of documents does not cure theprejudice to opponents nor does it restore to other litigants on a crowded docket theopportunity to use the courts.” ) (citation omitted); Schwartz v. Upper Deck Co., 183F.R.D. 672, 682 (S.D. Cal. 1999) (“ By suppressing documents, a party takes animplicit risk that it will not be allowed to use the material at a later date.” ); cf. Yetiby Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001)(affirming trial court’ s decision to exclude expert testimony where party failed tosupply expert report until one month before trial); Halaco Eng’g Co. v. Costle, 843F.2d 376, 380 (9th Cir. 1988) (recognizing court’ s “ inherent power to imposesanctions for discovery abuses that may not be a technical violation of the discoveryrules” ) (quoting district court opinion) (internal quotations omitted).64