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Ruth N. andrews v. Cbocs West

February 23, 2011

RUTH N. ANDREWS, PLAINTIFF,
v.
CBOCS WEST, INC. (D/B/A CRACKER BARREL, AND J.J. STEWART, DEFENDANTS.



The opinion of the court was delivered by: Williams, Magistrate Judge:

MEMORANDUM AND ORDER

A.Introduction

On December 10, 2009, Plaintiff Ruth Andrews (Ms. Andrews) filed this action against her former employer, CBOCS West, Inc. (d/b/a Cracker Barrel) pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 (ADEA), alleging race and age-based discrimination, and retaliation for previously filing a lawsuit, and for taking other actions pursuant to both Title VII and the ADEA. The action came before the undersigned Magistrate Judge, via teleconference, on February 16, 2011, for a Hearing on Ms. Andrews' Motion to Strike Declarations (Doc. 34) of six witnesses upon whose testimony Cracker Barrel relied-to varying degrees-in its pending Motion for Summary Judgment (Doc. 32).

B.Legal Analysis

Ms. Andrews brings her Motion to Strike pursuant to FEDERAL RULE OF CIVIL PROCEDURE 37(c)(1). Rule 37(c)(1) states in relevant part:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

"Under Rule 37, the sanction of exclusion of a witness is 'automatic and mandatory unless the party to be sanctioned can show that its violation . was either [substantially] justified or harmless.'" Elion v. Jackson, 544 F.Supp.2d 1, 6 (D.D.C. 2008) (quoting NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776, 785-86 (7th Cir. 2000). The party facing sanctions has the burden of proving that its violation was either substantially justified or harmless. Id. Thus, unless the failure to disclose is substantially justified or harmless, "a party may not use evidence on a motion that was responsive to discovery requests or a required disclosure under [Fed. R. Civ. P.] 26(a), but was not disclosed." Shepard v. Frontier Communications Servs, Inc., 92 F.Supp.2d 279, 285-86 (S.D.N.Y. 2000) (When considering a motion for summary judgment, the Court will not rely on a document that was responsive to discovery requests, but never produced, and only first disclosed as an exhibit supporting the motion.)

Ultimately, "'[t]he determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.'" David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (quoting Mid-America Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353, 1363 (7th Cir. 1996). District courts are not required to make explicit findings regarding the existence of a substantial justification or the alleged harmlessness of a failure to disclose. Id. (quoting Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). Nevertheless, the Seventh Circuit Court of Appeals has noted a number of factors that should guide a court's discretion when considering the impact of a Rule 26(a) violation, including: "(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date." Id. (citations omitted). These factors, and the analysis outlined above, guided the Court's inquiries and findings during the teleconference that it held with the parties.

C.Application to Ms. Andrews' Motion to Strike Declarations

During the teleconference, the Court noted that it must consider (1) whether each of the six Cracker Barrel witnesses at issue were adequately disclosed; (2) if not, was there any prejudice to Ms. Andrews; and (3) if there was, then what is the appropriate remedy. Prior to the teleconference, the Court reviewed the parties' briefs. Then, based on extensive oral arguments and the legal analysis outline above, the Court ruled as follows.

1.The Adequacy of Cracker Barrel's Disclosures

In its Response Brief, Cracker Barrel's first argument is that "Plaintiff's Motion to Strike should be denied because each and every one of Cracker Barrel's witnesses was disclosed in discovery" (Doc. 36). This broad-brush argument however quickly breaks down when the actual level of "disclosure" of each of the six witnesses is considered individually. Contrary to Cracker Barrel's assertion, the Court found that none of Cracker Barrel's alleged disclosures-in regards to the six witness Declarations that Ms. Andrews moved to strike-complied with the requirements of either Rule 26(a)(1)(A)(i) or 26(e). Specifically, in its Rule 26(a)(1) Disclosures, Cracker Barrel identified only Ms. Andrews, Beverly Cooper, J.J. Stewart and "All persons identified by Plaintiff." Yet, incredibly, Cracker Barrel attempted to argue that this last blanket statement, "All persons identified by Plaintiff," somehow made its disclosures regarding the six witnesses that Ms. Andrews moves to strike-most of whom it never formally disclosed-sufficient and adequate to comply with Rule 26(a). In reality, however, even if Ms. Andrews had knowledge of some or all of these six witnesses, and even if she identified some of them in her deposition or other disclosures, this is wholly inadequate for purposes of Cracker Barrel's compliance with Rule 26(a)(1). Cracker Barrel attempted to use these witnesses for declarations that went far beyond its generic, blanket "disclosure" of "All persons identified by Plaintiff." As a result, for purposes of Rule 26(a)(1), none of these six witnesses were adequately disclosed.

Further, even if the Court were to generously assume that "All persons identified by Plaintiff" was an adequate initial disclosure, Cracker Barrel still had an obligation, pursuant to Rule 26(e), to supplement this generic statement. Cracker Barrel's blanket "disclosure" clearly was "in some material respect . incomplete." FED. R. CIV. P. 26(e). Yet, in spite of this obvious deficiency, no "additional or corrective information" was made known to Ms. Andrews during the discovery process. Specifically, Cracker Barrel never disclosed "the subjects of [the] information" to which these six witnesses would be testifying. FED. R. CIV. P. 26(a)(1)(A)(i). So, even if Ms. Andrews knew who some or all of these witnesses were, she would not have known-without supplemental information from Cracker Barrel-the subjects of their Declarations. Thus, Ms. Andrews' alleged knowledge of these witnesses, by itself, was not enough for Cracker Barrel to assert that it had sufficiently complied with Rule 26(e). Cracker Barrel had a clear obligation, pursuant to Rule 26(e), to supplement its incomplete initial disclosures, but it failed to do so.

From the start, Cracker Barrel's blanket disclosure was inadequate for purposes of Rule 26(a)(1). Then, Cracker Barrel's initial failure was compounded when it never even attempted to comply with its obligation to supplement or correct these incomplete disclosures pursuant to Rule 26(e). Alleging that Ms. Andrews' awareness of the existence of these witnesses was sufficient misses the mark, and it neglects almost entirely one of the primary purposes for Rule 26 disclosures-"to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute." U.S. ex rel. Schwartz v. TRW, Inc., 211 F.R.D. 388, 392 (C.D. Cal. 2002); see also Federal Deposit Ins. Corp. v. Cherry, Bekaert & Holland, 131 F.R.D. 202, 204 (M.D. Fla. 1990) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978) ("The aim of liberal discovery rules is to make trial 'less a game of blindman's ...


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