Osburn v. Panetta et al

Filing 190

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

SHARON OSBURN,
Plaintiff,
v.
CHUCK HAGEL, Secretary,
Department of Defense,
(Defense Information
Systems Agency),
Defendant.

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CIVIL ACTION NO.
2:12cv349-MHT
(WO)

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).

The

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
Practice

§

12.37[2]

(3d

ed.

2013)

(“Only

material

included in a ‘pleading’ may be subject of a motion to
strike.... Motions, briefs or memoranda, objections, or
affidavits
strike.”).
disregard

may

not

However,
the

be

attacked

Osburn

evidence

in

also

by

the

asks

question.

motion

to

the

court

to

As

such,

in

resolving the pending summary-judgment motion, the court
will consider the motion as notice of objections to that

2

evidence.

Norman

v.

Southern

Guar.

Ins.

Co.,

191

F.Supp.2d 1321, 1328 (M.D. Ala. 2002) (Thompson, J.).
Osburn

objects

correspondence,
grounds.

and

to

various

policy

affidavits,

documents

on

two

email
sets

of

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.
insofar
evidence

as
is

a

ruling

necessary

As to these objections,

regarding
at

this

the

admissibility

of

Rowell

v.

stage,

see

BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005), the
court will address these objections in its ruling on
summary judgment.
The remainder of Osburn’s objections are based on
alleged

discovery

violations.

She

argues

that

the

Defense Secretary failed to disclose various witnesses
and documents during discovery and that the court should
therefore disregard them in considering his motion for

3

summary judgment.

The court will examine each disputed

witness or document in turn.

A.
Osburn

Sexual-Harassment Policies

objects

to

ten

of

the

11

pages

of

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.
that

she

requested

policies

regarding

Osburn says
harassment

in

discovery but that he produced only one such policy
document.

See

Policy (Doc. No. 131-12) at 11.

She

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
discovery period.”

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.

4

Discovery was

initially set to close July 15, 2013, and later extended
to

August 12.

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 &
92).

On August 16, the Secretary filed a motion to

dismiss the case because Osburn remained unavailable to
be deposed.

Motion to Dismiss (Doc. No. 93).

The

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
11, 2013.

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
10.

Osburn Dep. (Doc. No. 131-1) at 18; Policies (Doc.

No. 131-12) at 1 (cover page representing that Exhibit 12
to

the

Secretary’s

motion

for

Exhibit 8 to Osburn’s deposition).

5

summary

judgment

was

In

other

words,

the

Secretary

gave

Osburn

the

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.
the

magistrate

judge

Thus, whether or not

“effectively

stayed”

discovery

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
the policies.1

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
policies.
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
the court.
6

B.

Affidavit of Paul Sibley

In support of his motion for summary judgment, the
Defense Secretary offered an affidavit from Paul Sibley.
The

brief

affidavit

purports

to

establish

that

new

employees at Osburn’s agency are given an orientation
that

includes

the

agency’s

regarding harassment.
Attached

to

the

policies

and

procedures

Sibley Aff. (Doc. No. 131-11).

affidavit

is

the

agenda

from

an

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.
Rules

provide

for

‘initial

disclosures,’

including

requiring each party to:
“...without
awaiting
a
discovery
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
7

The

defenses, unless the use would be solely
for impeachment.”
Fed. R. Civ. P. 26(a)(1)(A).

The Secretary provided

initial disclosures as required, but did not cite Sibley
as a potential witness.
1).

The

Rules

also

See Disclosures (Doc. No. 137require

parties

to

correct

or

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
the

additional

or

corrective

information

has

not

otherwise been made known to the other parties during the
discovery process or in writing.”
26(e)(1)(A).

Fed. R. Civ. P.

Osburn contends, and the Secretary does not

dispute, that the Secretary never submitted supplemental
initial disclosures.
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
and Sibley.

This, he argues, should have put Osburn on

notice that Sibley might be a witness in the case,
8

obviating the need for a formal Rule 26(a) or 26(e)
disclosure.

Even if he sent Osburn the emails, as he

maintains, that would not satisfy his obligations under
Rule

26,

which

requires

disclosure

not

only

of

the

identity of a potential witness but also the subjects of
his

likely

number.

testimony

and

his

address

Fed. R. Civ. P. 26(a)(1)(A).

and

telephone

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
summary judgment.
9

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).

Fed. R.

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
Rule 56.”

Id.

The Secretary argues that his failure to disclose
Sibley was harmless because, despite having been given
the opportunity, Osburn declined to depose any agency
witnesses.

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

10

to

depose

unanticipated

witnesses.

Indeed,

giving

opposing parties the opportunity to seek discovery is the
entire

point

witnesses.
party

to

of

disclosure

of

potential

“The burden rests upon the non-producing
show

justified

mandating

or

that

its

actions

harmless.”

were

Stallworth

substantially
v.

E-Z

Serve

Convenience Stores, 199 F.R.D. 366, 368 (M.D. Ala. 2001)
(De

Mint,

J.).

The

Secretary

has

offered

only

speculation in that respect, and failed to carry his
burden.

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
October 2011.

11

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).

However, in

a letter to Osburn’s counsel, the Secretary’s counsel
specifically

identified

and

provided

contact

See Letter date Feb. 28, 2013 (Doc.

information for her.
No. 144-3).

Platt,

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

D.
Finally,

Email Correspondence

Osburn

objects

to

email

correspondence,

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
either.
12

because Bakker and Nixon were not disclosed as potential
witnesses pursuant to Rules 26(a) and 26(e).

Those

emails apparently relate to Equal Employment Opportunity
climate surveys held at Osburn’s agency.

See Emails

(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.

Rather,

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

object

hearsay

that

such

emails

constitute

and

lack

foundation, she can hardly object on the grounds that the
Secretary failed to disclose the name of witnesses that

13

he “may use” without any evidence that he ever had any
intention of ‘using’ those individuals.

Therefore, the

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