Can you exclude at trial allegations of discovery abuses?

During the course of litigation, especially contention one, it is likely that each side will accuse the other of discovery abuses. Can those allegations be excluded with a motion in limine? Unfortunately, there is limited case law on this topic. Most discovery disputes are either not serious enough to warrant sanctions or so trivial as to not be addressed in a published decision. Generally, allegations of discovery abuses are excluded based on a lack of relevance. In Empire Gas Corp. v. American Bakeries Co., 840 F.2d 1333 (7th Cir. 1988), the Seventh Circuit Court of Appeals relied on Rule 403 to affirm the trial court’s decision to exclude evidence of discovery disputes, including evidence that the defendant willfully failed to comply with discovery by not providing certain documents to plaintiff. Id. at 1341. Similarly, in Burwell v. American Edwards Labs, 574 N.E.2d 1094, 1102 (Ohio Ct. App. 1989) the court held that evidence of defendant’s improper discovery behavior was more prejudicial than probative. Although this out of state authority is less than ideal, they both rely on Rule 403 to exclude evidence of discovery misconduct. The only case from the Ninth Circuit on point was Lemon v. Harlem Globetrotters Intern., Inc., Not Reported in F.Supp.2d, 2006 WL 3524379, (D.Ariz.,2006). Here, the court granted a motion in limine to exclude any allegations of discovery abuses based on Plaintiff’s failure to raise the discovery issues in a timely manner. Unfortunately, there was no discussion as to whether this information was actually relevant. However, the above holdings suggest that discovery abuses can indeed be excluded at trial via a motion in limine.