?????So there's an interesting interface between two recent opinions. In Esposito v. Home Depot U.S.A., 590 F.3d 72 (1st Cir. Dec. 30, 2009) the panel consisted of Judges Lipez and Howard, and Chief District Court Judge Woodcock, visiting from Maine. The Court, with Judge Woodcock dissenting and Judge Lipez writing the majority opinion, held that it was an abuse of discretion for the trial judge to preclude an expert witness as a discovery sanction. Judge Woodcock's dissent was lengthy and heartfelt, explaining in detail how this sort of discretion is critical to a trial court's control of its docket and why there was no abuse in this case.
Time passes. On December 6, 2010 the First Circuit issues Harriman v. Hancock County, No. 09-2284, an appeal from a decision of Judge Woodcock's precluding two affidavits as a discovery sanction. The panel was Judges Torruella, Selya and Howard, opinion by Judge Howard, who, you will recall, sat on the Esposito panel.
In Harriman, the panel described Esposito as a "recherche" case. My dictionary says recherche means 1. uncommon; rare; 2. exquisite or choice; 3. overrefined; forced; 4. pretentious; overblown. Hmm.
The panel noted that there had been "one judge dissenting" in Esposito, without noting that it was the trial judge in Harriman.
The distinguishing feature, according to the panel in Harriman, was that exclusion of the affidavits there did not obviously or automatically result in dismissal, the sanctioned party had missed other deadlines and ignored a warning, and the sanctioned party's actions "could be viewed as strategic." "None of these circumstances was present in Esposito," the Court said. Hmm. In the dissent in Esposito, Judge Woodcock noted the effect of the sanctioned party's non-disclosure on the sequential discovery process, which could lead to gaining unfair [strategic?] advantage in litigation.
Finally, the Harriman panel said: "we decline to expand Esposito's holding beyond its highly idiosyncratic facts."
