can be “a too harsh remedy” for discovery violations and generally is “an appropriate remedy for a discovery rule violation only where ‘the omission was willful and motivated by a desire to obtain a tactical advantage.’ ” United States v. Finley, 301 F.3d 1000, 1018 (9th Cir.2002) (quoting Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)) (emphasis removed). This is certainly so in the case of an order that broadly precludes evidence, one we would expect to be accompanied by findings — not present here — of government misconduct and prejudice to the defendants. See Schwartz, 857 F.2d. at 659 (noting that the government had not violated any discovery orders or behaved duplicitously); see also United States v. Gonzales, 164 F.3d 1285, 1292 (10th Cir.1999) (<HOLDING>). On the record before us, therefore, we cannot
holding that in determining whether a discovery violation warrants the sanction of exclusion of evidence a court must look to whether the violation was substantial the timing of the violation the reason for the violation the degree of prejudice to the parties whether such prejudice may be cured by a postponement and the desirability of a continuance holding that the district court should consider the totality of the circumstances in determining whether the patentee acted in subjective bad faith and should consider whether circumstantial evidence would support an inference of bad faith holding that in selecting a proper discovery sanction a court should typically consider 1 the reasons the government delayed producing requested materials including whether the government acted in bad faith 2 the extent of prejudice to defendant as a result of the delay and 3 the feasibility of curing the prejudice with a continuance holding that the excusable neglect inquiry is at bottom an equitable one that should be made by considering the danger of prejudice to the nonmoving party the length of the delay and its potential impact upon judicial proceedings the reason for the delay including whether it was in the reasonable control of the movant and whether the movant acted in good faith  holding that when determining whether a delay in prosecution violates a defendants right to a speedy trial courts must consider the length of the delay the reason for the delay whether the defendant asserted his rights and the resulting prejudice to the defendant