Osburn v. Panetta et al
OPINION AND ORDER directing that: (1) Plaintiff Sharon Osburn's motion to strike or disregard (Doc. No. 137 ) granted to the extend that her objection to the affidavit of Paul Sibley (Doc. No. 131 -11) is sustained, and the court will disregard that affidavit and its attachment at summary judgment; (2) Plaintiff Osburn's motion to strike or disregard (Doc. No. 137 ) is denied in all other respects. Signed by Honorable Judge Myron H. Thompson on 9/15/14. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
CHUCK HAGEL, Secretary,
Department of Defense,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Sharon Osburn brought this action against
defendant Secretary of the Department of Defense claiming
sexual harassment and retaliation under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a
& 2000e through 2000e–17. Subject-matter jurisdiction is
proper under 42 U.S.C. § 2000e–5(f)(3) (Title VII).
cause is before the court on Osburn’s motion to strike or
disregard certain evidence.
in part and denied in part.
The motion will be granted
At the outset, insofar as Osburn asks the court to
strike the evidence in question, the motion is denied.
The Federal Rules of Civil Procedure restrict the use of
a motion to strike to the pleadings.
A motion to strike
is not an appropriate vehicle for a general attack on
See Jeter v.
another litigant’s affidavits and evidence.
Montgomery Cnty., 480 F. Supp. 2d 1293, 1295 (M.D. Ala.
2007) (Thompson, J.); Lowery v. Hoffman, 188 F.R.D. 651,
653 (M.D. Ala 1999) (Thompson, J.); Fed.R.Civ.P. 12(f);
see also 2 James Wm. Moore, et al., Moore's Federal
included in a ‘pleading’ may be subject of a motion to
strike.... Motions, briefs or memoranda, objections, or
resolving the pending summary-judgment motion, the court
will consider the motion as notice of objections to that
F.Supp.2d 1321, 1328 (M.D. Ala. 2002) (Thompson, J.).
Some of her objections are evidentiary in
nature, such as her objections that particular evidence
constitutes hearsay or legal conclusions, or lacks a
basis in personal knowledge.
As to these objections,
BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005), the
court will address these objections in its ruling on
The remainder of Osburn’s objections are based on
Defense Secretary failed to disclose various witnesses
and documents during discovery and that the court should
therefore disregard them in considering his motion for
The court will examine each disputed
witness or document in turn.
sexual-harassment policies that the Defense Secretary
submitted in support of his motion for summary judgment.
See Pf. Motion to Strike or Disregard (Doc. No. 137) at
2-3; Policies (Doc. No. 131-12) at 2-10.
discovery but that he produced only one such policy
Policy (Doc. No. 131-12) at 11.
argues that the rest of the policy documents must be
disregarded because they “were provided after August 16,
2013,” or, in other words, were not provided “within the
Pf. Motion to Strike or Disregard
(Doc. No. 137) at 3.
The Secretary responds that, in fact, he did provide
the documents within the discovery period.
initially set to close July 15, 2013, and later extended
Because of difficulty scheduling Osburn’s
deposition, the court granted an extension to August 16.
See Motion for Extension of Time; Order (Doc. Nos. 89 &
On August 16, the Secretary filed a motion to
dismiss the case because Osburn remained unavailable to
Motion to Dismiss (Doc. No. 93).
magistrate judge in this case held a hearing on that
motion on August 27, at which time he withheld a ruling
on the motion to dismiss and ordered Osburn and her
husband to submit to depositions on or before September
Order (Doc. No. 102); Transcript (Doc. No.
144-1 at 14).
The policies in question were introduced
as an exhibit to Osburn’s deposition held on September
Osburn Dep. (Doc. No. 131-1) at 18; Policies (Doc.
No. 131-12) at 1 (cover page representing that Exhibit 12
Exhibit 8 to Osburn’s deposition).
policies at the same time as Osburn finally made herself
available for a deposition.
The court sees no basis to
exclude the September 10 disclosures but still consider
Osburn’s September 10 testimony.
Thus, whether or not
pending Osburn’s deposition as the Secretary argues, Dft.
Opp. Strike or Disregard (Doc. No. 144) at 12, the court
declines Osburn’s invitation to sanction him by excluding
1. This is not to say that the court would not have
considered any sanctions in this instance. The Secretary
responded to Osburn’s request for production on January
15, 2013, but did not produce the policies in question
until Osburn’s deposition, some nine months later. If
the Secretary knew of the policies in January and did not
disclose them, he might well be subject to sanctions.
But Osburn did not file a motion for sanctions on this
basis upon learning of the policies in September 2013.
She did not seek to extend discovery based on the
Instead, she sought only to exclude the
documents from the court’s consideration, and cited only
the Secretary’s purported failure to disclose the
policies within the discovery period.
As such, the
propriety of any other possible sanctions is not before
Affidavit of Paul Sibley
In support of his motion for summary judgment, the
Defense Secretary offered an affidavit from Paul Sibley.
employees at Osburn’s agency are given an orientation
Sibley Aff. (Doc. No. 131-11).
orientation that, he contends, Osburn herself attended.
Id. at 3 ; see also Email (Doc. No. 131-10) (Osburn
apparently indicating she would attend the orientation).
Osburn objects to the affidavit, citing the Defense
Secretary’s failure initially to disclose Sibley.
requiring each party to:
request, provide to the other parties
... (i) the name and, if known, the
address and telephone number of each
individual likely to have discoverable
information--along with the subjects of
that information--that the disclosing
party may use to support its claims or
defenses, unless the use would be solely
Fed. R. Civ. P. 26(a)(1)(A).
The Secretary provided
initial disclosures as required, but did not cite Sibley
as a potential witness.
See Disclosures (Doc. No. 137require
supplement their initial disclosures “in a timely manner
if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if
otherwise been made known to the other parties during the
discovery process or in writing.”
Fed. R. Civ. P.
Osburn contends, and the Secretary does not
dispute, that the Secretary never submitted supplemental
The Secretary argues that he did disclose Sibley as
a potential witness by providing Osburn with, during the
course of discovery, email correspondence between herself
This, he argues, should have put Osburn on
notice that Sibley might be a witness in the case,
obviating the need for a formal Rule 26(a) or 26(e)
Even if he sent Osburn the emails, as he
maintains, that would not satisfy his obligations under
identity of a potential witness but also the subjects of
Fed. R. Civ. P. 26(a)(1)(A).
The Secretary has
made no showing that he ever, formally or as a practical
matter, disclosed that information to Osburn.2
The Rules provide for especially strict enforcement
of the initial-disclosures requirement.
“If a party
fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed
2. Indeed, even the Secretary’s contention that he
disclosed Sibley’s identity amounts to nothing more than
the say-so of defense counsel.
While he cites to an
exhibit, see Dft. Reply Br. Summ. Judgt. (Doc. No. 144)
at 15 n.8, the exhibit itself was not included with the
brief, apparently in anticipation of a supplemental
filing. Exhibit B to Dft. Reply Br. Summ. Judgt. (Doc
No. 144-2). The court is not aware of any supplemental
filing. Thus, on this record, he has offered no evidence
he ever disclosed Sibley prior to filing his motion for
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.”
Civ. P. 37(c)(1) (emphasis added).
The commentary to the
rule indicates that it was intended to constitute a
“self-executing sanction for failure to make a disclosure
required by Rule 26(a), without need for a motion.”
Advisory Committee’s 1993 not on subd. (c) of Fed. R.
Civ. P. 37.
“This automatic sanction provides a strong
inducement for disclosure of material that the disclosing
party would expect to use as evidence, whether at a
trial, at a hearing, or on a motion, such as one under
The Secretary argues that his failure to disclose
Sibley was harmless because, despite having been given
the opportunity, Osburn declined to depose any agency
But, of course, the fact that Osburn declined
to depose the witnesses upon whom she knew he intended to
rely upon does not establish that she would have declined
opposing parties the opportunity to seek discovery is the
“The burden rests upon the non-producing
Convenience Stores, 199 F.R.D. 366, 368 (M.D. Ala. 2001)
speculation in that respect, and failed to carry his
Sibley’s affidavit will be excluded, and the
attached document disregarded for lack of foundation.
C. Affidavit of Janis Platt
The Defense Scretary also submitted an affidavit from
Janis Platt in support of his summary-judgment motion.
Platt states that Osburn was assigned to work under her
supervision in May 2010, and sets forth Platt’s version
of the events leading up to Osburn’s termination in
Osburn objects to the Platt affidavit, again citing
the Secretary’s alleged failure to disclose Platt as a
witness pursuant to Rules 26(a) and 26(e).
a letter to Osburn’s counsel, the Secretary’s counsel
See Letter date Feb. 28, 2013 (Doc.
information for her.
Osburn has not explained why this notice was
insufficient or, if for some reason it was insufficient,
why she did not raise the issue sooner.
The court finds
that there was no Rule 26 violation with regard to Platt
and will consider her affidavit.3
apparently sent from Jason Bakker and Gregory Nixon,
3. Osburn also seems to argue that the Secretary
failed to disclose Platt in response to an interrogatory.
See Pfs. Pfs. Motion to Strike or Disregard (Doc. No.
137) at 17-18.
The court cannot discern how Platt’s
testimony falls within the quoted interrogatories and
thus concludes there has been no violation on this score
because Bakker and Nixon were not disclosed as potential
witnesses pursuant to Rules 26(a) and 26(e).
emails apparently relate to Equal Employment Opportunity
climate surveys held at Osburn’s agency.
(Doc. Nos. 131-64 & 131-70).
The Secretary represents that the emails themselves
were disclosed to Osburn during the course of discovery;
Osburn offers no reason to doubt that is true.
Osburn’s only argument appears to be that the Secretary
did not disclose his intention to call the authors of
those emails as witnesses.
But the Secretary has offered
no affidavits or other sworn statements from Bakker or
Nixon; indeed, there is no indication at all that he does
intend to rely on either as a witness.
Rather, he has
submitted stand-alone email correspondence, apparently
between those individuals and Osburn.
While Osburn might
foundation, she can hardly object on the grounds that the
Secretary failed to disclose the name of witnesses that
he “may use” without any evidence that he ever had any
intention of ‘using’ those individuals.
court will consider the emails at summary judgment, but
will construe Osburn’s objection as an evidentiary one
and address it to the extent necessary.
See Rowell, 433
F.3d at 800.
Accordingly, it is ORDERED that:
(1) Plaintiff Sharon Osburn’s motion to strike or
disregard (Doc. No. 137) granted to the extend that her
objection to the affidavit of Paul Sibley (Doc. No. 13111) is sustained, and the court will disregard that
affidavit and its attachment at summary judgment.
(2) Plaintiff Osburn’s motion to strike or disregard
(Doc. No. 137) is denied in all other respects.
DONE, this the 15th day of September, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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