Dunn et al v. Thomas et al

Filing 1196

PHASE 2 OPINION AND ORDER ON MOTIONS TO STRIKE: It is ORDERED that: (1) Defendants' first motion to strike (doc. no. 751 ) is denied. (2) The court reaffirms its order (doc. no. 909 ) denying defendants' second motion to strike (doc. no. 809 ) and granting leave to depose the challenged declarants, with the following clarification: defendants will not recover any fees or expenses from plaintiffs pursuant to Federal Rule of Civil Procedure 26, and plaintiffs will not be allowed to re cover attorneys fees and expenses (that they would otherwise be entitled to under the fee-shifting statutes should they prevail) in connection with the litigation of defendants second motion to strike (doc. no. 809 ) and with the taking of the chall enged declarants' depositions. (3) The court reaffirms its orders (doc. nos. 845 & 909 ) denying plaintiffs motion to strike (doc. no. 838 ), but with prejudice, and with the following clarification: plaintiffs are granted leave to depose Darryl Ellis, the Director of Nursing at Staton Correctional Facility, at a time to be determined in the future. Signed by Honorable Judge Myron H. Thompson on 2/17/2017. (kh, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION EDWARD BRAGGS, et al., Plaintiffs, v. JEFFERSON S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:14cv601-MHT (WO) PHASE 2 OPINION AND ORDER ON MOTIONS TO STRIKE The plaintiffs in this lawsuit are state prisoners and the Alabama Disabilities Advocacy Program. The defendants are the Alabama Department of Corrections, its Commissioner, Health Services. this opinion following and and its Associate Commissioner of In Phase 2 of this case, with which is claims: mental-health concerned, plaintiffs constitutionally treatment in assert the inadequate medical Alabama prison facilities, involuntary medication without due process, and discrimination disabilities. against prisoners with mental They rely on the Eighth and Fourteenth Amendments (as enforced through 42 U.S.C. § 1983), the Americans with Disabilities Act (42 U.S.C. §§ 12131-12134), and § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794). Jurisdiction is proper under 28 U.S.C. § 1331 (federal question) and § 1343 (civil rights). This opinion addresses: (1) Defendants’ first motion to strike (doc. no. 751): They seek to exclude plaintiffs’ supplemental disclosures of certain individuals. (2) Defendants’ second motion to strike (doc. no. 809): They seek to exclude certain declarations submitted by plaintiffs in support of their motion for class certification. (3) Plaintiffs’ motion to strike (doc. no. 838): They seek defendants to in exclude support certain of documents their motion submitted for summary judgment and in opposition to class certification. 2 by After previously oral argument entered an on order the record, (doc. no. the 845) court denying without prejudice plaintiffs’ motion to strike (doc. no. 838) as to the following documents: the affidavit of Angie Baggett, Greifinger, Teresa and strike the Houser’s declaration.1 left the declaration 2016 MHM description of grievance of that Dr. Robert policy policy in and her The one part of plaintiffs’ motion to pending was their challenge to the declarations of previously undisclosed witnesses. In order to provide guidance quickly to the parties, the court also entered an order (doc. no. 909) denying defendants’ second motion to strike (doc. no. 1. The court denied plaintiffs’ motion as to these documents without prejudice; the court also ordered responsive briefing on the issues. After further consideration, the court sees no reason to revisit plaintiffs’ challenge to the declarations of Dr. Greifinger or the grievance policy and Houser declaration. The court also sees no reason to revisit plaintiffs’ argument that the Baggett affidavit should be stricken essentially because its content is inaccurate. However, the court will laddress plaintiffs’ challenge to the Baggett affidavit on the (continued...) 3 809) and the remaining part of plaintiffs’ motion to strike (doc. no. 838) (about the declarations of the previously undisclosed witnesses) to the extent that the declarations would not be stricken and defendants would be allowed to depose the challenged declarants. The court now issues this opinion to explain fully its reasoning for and to resolve in their entirety defendants’ second motion to strike (doc. no. 809) and plaintiffs’ motion to strike (doc. no. 838). The court now also resolves defendants’ first motion to strike (doc. no. 751). I. GOVERNING LAW Federal Rule of Civil Procedure 26(a) requires that a party provide an initial disclosure containing “the name and, if known, the address and telephone number of each individual information--along ground that discovery. she likely to with was not the have subjects appropriately 4 discoverable of that disclosed in information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” 26(a)(1)(A)(i). Rule Fed. 26(e) R. requires a Civ. P. party to supplement Rule 26(a) 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.” Fed. R. Civ. P. 26(e)(1)(A). Rule 37(c)(1) provides that, “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.” Civ. that, P. 37(c)(1). “in addition However, to or the instead rule of” also Fed. R. provides excluding the information or witness, a court “may order payment of 5 reasonable expenses, including attorney’s fees, caused by the failure,” sanctions.” or “impose other appropriate Fed. R. Civ. P. 37(c)(1)(A) & (C). II. Plaintiffs PROCEDURAL BACKGROUND served their initial disclosures in October 2014; in those, plaintiffs listed as potential prisoner witnesses the 43 named plaintiffs and seven additional 2016, six prisoners.2 non-plaintiff days before the Then, discovery in March deadline, plaintiffs served a supplemental disclosure listing as potential members” plaintiffs’ (doc. no. plaintiffs prisoner with witnesses discoverable claims. 809-3 stated 244 at March 4). that At they “[p]roposed information Supplemental the end “further of class about Disclosure this list, incorporate[d] additional prisoners and proposed class members within 2. Defendants have not argued, and there is no indication, that plaintiffs at the time of their initial disclosures knew of the prisoners who are the subject of defendants’ pending motions to strike. 6 the custody of the Alabama Department of Corrections ... whose names and identities have been disclosed by the Parties and their agents process or in writing.” during Id. at 9. the discovery Defendants did not take issue with the adequacy of these disclosures until months later in the course of litigating the pending motions to strike. In August 2016, plaintiffs filed their motion for class certification evidentiary submitted support they and not of the case. motion, pages reports, documentary declarations of As plaintiffs thousands--of expert other filed 2 the transcripts, emails, addition, Phase for hundreds--if deposition records, for of medical evidence; the in named plaintiffs and a group of 37 non-party prisoners. In early additional September 2016, supplemental plaintiffs disclosures filed naming 87 individuals who had information as to the impact of overcrowding and understaffing medical and mental-health care. 7 on the provision of While defendants did not object to the vast majority of the disclosures, they filed their first motion to strike, seeking to exclude from plaintiffs’ supplemental disclosures five non-party prisoners who had submitted declarations in support of class certification. Later that month, defendants filed their Phase 2 motion for summary judgment, and their response to plaintiffs’ Phase 2 motion for class certification. As evidentiary support for their summary-judgment motion and for their defendants, deposition response like to class plaintiffs, transcripts, expert certification, submitted reports, numerous declarations, and other types of documentary evidence. Along with their response to class certification, defendants filed a second motion to strike, seeking to exclude the 37 declarations of non-party prisoners plaintiffs had submitted in support of their motion for class certification. Plaintiffs later filed a motion to strike certain documents filed by defendants 8 in support of summary judgment and in opposition to class certification, seeking to exclude a number of declarations, including some made by previously undisclosed witnesses. The court will first address defendants’ second motion to strike and then their first motion to strike. Afterwards, the court will address plaintiffs’ motion to strike. III. DEFENDANTS’ SECOND MOTION TO STRIKE Defendants’ second motion to strike seeks to exclude from consideration on class certification the declarations of 37 non-party prisoners.3 Defendants argue that Rule 37(c)(1) requires the exclusion of the challenged declarations because the prisoners were not appropriately disclosed as potential witnesses in accordance with Rule 26(a) or (e) during the discovery 3. Defendants initially moved to strike 38 declarants; two of the 38 had the same name. Plaintiffs clarified that the two declarants with the same name were actually the same person, so it is now clear that only 37 declarants are at issue. 9 period and the failure to disclose was not substantially justified or harmless. Plaintiffs responded that they formally disclosed five of the challenged declarants--A.D., G.L., M.P., T.G., and T.P.4--in their March supplemental disclosure, and that all but two5 of the remaining declarants were adequately made known to defendants in the course of discovery. Plaintiffs argued that, even if the disclosures were insufficient, the failure to disclose them was both substantially justified and harmless. The court declarants will identified sufficiently first in disclosed, analyze the and whether March will the five disclosures were then turn to the remaining declarants. 4. Because the declarants at issue are prisoners with confidential medical issues, the parties and the court have used their initials to protect their privacy. 5. Plaintiffs conceded that two declarants, J.S. and D.O., were not disclosed in any manner during the discovery period. 10 A. March Disclosures Five of the declarants whom defendants now challenge were listed in plaintiffs’ March supplemental disclosures. In that document, plaintiffs listed 244 prisoners as persons with information upon which they might rely and described the subjects of the prisoners’ information information as follows: concerning “Each his/her individual healthcare, has including mental health, medical and dental care ..., health care practices at the facilities at which he/she is or has been housed, his/her disabilities, practices regarding accommodations of disabilities at the facilities which he/she is or has been housed.” at Pls.’ Suppl. Disclosures (doc. no. 809-3) at 3-4. Defendants argue that these insufficient for several reasons. disclosures were They argue that the timing of the disclosures--shortly before the close of discovery--was improper. description given information was as to They further contend that the the insufficient 11 prisoners’ and that subjects of plaintiffs’ disclosure of hundreds of potential prisoner witnesses amounted to the type of impermissible ‘laundry list’ that a number of courts have found unacceptable. See, e.g., Sender v. Mann, 225 F.R.D. 645, 650-655 (D. Colo. 2004) (Shaffer, M.J.) (“If a party is unwilling to conduct a reasonable inquiry in advance of making Rule 26(a)(1) disclosures, that party cannot defeat the purposes of Rule 26(a)(1) simply by providing a laundry list of undifferentiated witnesses.”). This court is not persuaded that the large number of potential witnesses disclosed alone necessarily renders the March disclosure inadequate. In a case such as this one, involving the health care provided to and the accommodation of disabilities of thousands (indeed, perhaps tens of thousands) of prisoners, there may well be hundreds of prisoners who have not only discoverable, but highly pertinent, information which the parties “may use to support” their claims. Civ. P. 26(a)(1)(A)(i). Fed. R. Parties are not required to narrow down their final witness selections before the 12 close of discovery; indeed, they need not do so until their required witness list submissions. Civ. P. 26(a)(3). have identified discoverable See Fed. R. However, to the extent that they individuals information upon with which potentially they may rely, parties are under a clear obligation to disclose them in a timely manner. And to the extent they know their prior disclosures are no longer accurate, parties must amend their disclosures in a timely manner. Here, the timing of the plaintiffs’ supplemental disclosures--coming discovery--is six troubling. days before Admittedly, the close this is not of a typical case in which the focus of the litigation is a particular event and the parties know when the case begins who most of the potential witnesses are; here, given the wide scope of the case and the ongoing nature of the claims, it is unsurprising that plaintiffs learned the identities of many potential witnesses long after the start of the litigation and discovery. plaintiffs argued that defendants 13 produced Also, much of their requested discovery very late in the discovery period, and that this delayed their identification of certain witnesses. Given this delay in production, it is understandable if plaintiffs did not identify many of the disclosed potential witnesses until late in the discovery period. However, plaintiffs have not shown that the production delay specifically impacted their disclosure of the five individuals in the disclosure whom defendants now challenge. Indeed, plaintiffs represented that one of the individuals on the list, T.G., was interviewed by a plaintiff’s expert in September 2015; given that timing, plaintiffs clearly should have disclosed him as a person with discoverable information well before March 2016. In any case, the information disclosed about each prisoner While was insufficient plaintiffs were to not comply required with to Rule 26. describe in detail what each disclosed witness’s testimony would be, their one-size-fits-all disclosure as to the 244 prisoners was plainly insufficient. 14 All that plaintiffs disclosed was that each listed potential witness might be used to testify to any or all of the claims in the case.6 Especially given the large number of persons being disclosed, plaintiffs should at least have narrowed claims on for which defendants each considered to testify. listed the specific individual claim was or being Because the March disclosure of the topics about which the five challenged declarants had discoverable information was too broad, the court finds that it was insufficient to comply with Rule 26. B. Remaining Declarants Defendants also moved to strike the declarations of 32 declarants who were not included in the March disclosure. Five of the 32 declarants were identified plaintiffs’ September supplemental disclosure. in In that 6. It seems highly unlikely that plaintiffs were considering using every prisoner on the list on every single claim in the case: for example, presumably not (continued...) 15 document, plaintiffs disclosed 87 individuals with information upon which plaintiffs might rely regarding the impact of overcrowding or understaffing provision of medical and mental-health care. included 13 plaintiffs. prisoners. prisoners, of whom eight on the This list were named Defendants challenge the remaining five Defendants argue that their declarations should be stricken because the disclosures were made too late. (Defendants did not object to the other potential witnesses and information contained in this disclosure.) Plaintiffs conceded that one of the individuals identified in this disclosure, J.S., was not previously disclosed to defendants in either a formal disclosure or the course declarants plaintiffs of discovery. listed argue on that the the As to the September second motion four other disclosure, to strike should be denied because the witnesses' identities had every listed witness has a disability or knew about the treatment of prisoners with disabilities in the prison. 16 “otherwise been made known to the other parties during the discovery process.” Fed. R. Civ. P. 26(e)(1)(A). The remaining 27 of the 32 declarants were never identified in a formal disclosure. Plaintiffs conceded that one of the 27--D.O.--was never identified in any manner. that the As for the remainder, plaintiffs again argue second motion to strike should be denied because the witnesses' identities had ‘otherwise been made known to the other parties during the discovery process.’ The court will first address the two declarants whom plaintiffs admit were never identified during the discovery process. consider their Plaintiffs argue that the court may declarations on class certification because the rules of evidence do not apply stringently in that context. See Hogan v. Allstate Beverage Co., No. 2:10CV390-MHT, 2012 WL 6027748, at *6 (M.D. Ala. Dec. 4, omitted). 2012) (internal citation and quotations The court agrees with defendants that the applicability of the rules of evidence is irrelevant to 17 the issue now before the court; whether to exclude the declarations under Federal Rule of Civil Procedure 37. In any case, the court did not consider the declarations of J.S. or D.O. in its Phase 2A class certification decision, so the issue is moot as to that decision. The potential use of these declarations in Phase 2B will be addressed below. As for the remainder of the challenged declarants, plaintiffs contend that these individuals were sufficiently made known to defendants during the course of discovery when plaintiffs’ experts requested to interview them during inspections of the facilities.7 In response, defendants argue that the expert requests were not sufficient to discharge plaintiffs’ disclosure 7. They also point out that one of these witnesses--T.G.--was listed in the March disclosure; however, as discussed above, that disclosure was insufficient. 18 obligations because the experts spoke, confidentially, to hundreds of prisoners during the tours.8 As mentioned earlier, under Rule 26(e), “a party is under no duty to formally supplement its initial disclosures with information that has otherwise been made known to the opposing party in discovery. Advisory there Committee is corrective ‘no Notes to Rule obligation to provide information that has 26(e) been provide The that supplemental otherwise or made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition....’ Similarly, Professors Wright and Miller explain that this provision ‘recognize[s] that there is no need as a 8. Defendants further stated “upon information and belief” that five of the prisoners at issue were never interviewed by the experts during an inspection. In their response brief, plaintiffs represented that four of these five were in fact interviewed, and they listed the facilities where the interviews occurred. As the court’s decision does not turn on whether they were in fact interviewed, the court need not resolve this dispute. 19 matter of form to submit a supplemental disclosure to include information already revealed by a witness in a deposition or otherwise through formal discovery.’ Charles Alan Wright & Arthur Practice and Procedure § 2049.1.” R. Miller, 8 Federal Brown v. Chertoff, No. 4:06CV002, 2009 WL 50163, at *5 (S.D. Ga. Jan. 7, 2009) (Edenfield, J.) (citation omitted), aff’d sub nom., Brown v. Napolitano, 380 F. App’x 832 (11th Cir. 2010). ... Moreover, “[d]istrict courts in this circuit generally will not strike the testimony of a witness whose role may not have been wholly revealed during the course of discovery. Rather, the focus is on whether the moving party is aware that the affiant is an individual with discoverable information.” Ojeda-Sanchez v. Bland Farms, LLC, No. 6:08CV096, 2010 WL 2382452, at *2 (S.D. Ga. June 14, 2010) (Edenfield, J.) (citing cases). parties have not The court is not aware of, and the cited, a case that addresses the precise issue here: whether and when a medical expert’s request to interview a prisoner 20 during a discovery inspection constitutes adequate disclosure under Rule 26(e) in a putative class action about adequacy of medical care.9 In order sufficiently course of to determine disclosed discovery, these the inspections took place. and pursuant to a whether witnesses court plaintiffs during examined how the the As part of formal discovery, mediated agreement, plaintiffs’ experts were allowed to tour various prisons and, upon request, certain to review prisoners medical during the records and tours under interview specific 9. Defendants cited one somewhat similar case, Prism Technologies, LLC. v. T-Mobile USA Inc., No. 8:12CV124, 2015 WL 5693080 (D. Neb. Sept. 28, 2015) (Strom, J.). In that case, the court struck a party’s supplemental disclosure of two new witnesses more than a year after the close of fact discovery because the witness’s testimony was not new to the party at the time of the disclosure. Id. at *2. The court also rejected the party’s argument that the witnesses were disclosed in the course of discovery where they were interviewed as a basis for an expert witness’s opinion or listed as authors relied upon by the expert. As reasoning, the court stated only: “This is not the type of disclosure intended by the rules.” Id. As the court provided no explanation for this conclusion, the case was not persuasive. 21 conditions.10 Counsel for defendants was present during each tour. During the tours, experts identified to plaintiffs’ counsel those prisoners whose medical or mental-health records they wanted to review prisoners whom they wanted to interview. and To obtain records for review, plaintiffs’ counsel gave the name of the prisoner to one of defendants’ counsel, who asked the prisoner to sign a HIPAA release, or asked plaintiffs’ release. counsel to have the prisoner sign the Defense counsel or a member of the medical staff then brought the records for the expert to review in a central prisoners to location. When interview during experts the identified inspections, plaintiffs’ counsel wrote down the prisoners’ names and identification individuals to numbers defense and gave counsel. a list Defense of the counsel transmitted that information to prison personnel and sometimes accompanied custody staff to get the prisoner 10. These facts are taken from a declaration of an attorney for the plaintiffs, which was not rebutted by (continued...) 22 and deliver the prisoner to the expert to interview. Plaintiffs also inspections to prisoners. At emailed arrange the defendants for end of before interviews these of the certain inspection days, defense counsel occasionally asked for the name of a prisoner an expert had interviewed, and plaintiffs’ counsel provided that information to defense counsel. Defense counsel apparently kept a list of the prisoners who were interviewed, as they produced what appeared to be that list as an exhibit to their second motion to strike. This process likely provided significant information to the defendants about at least some of the declarants. different Each expertise, should have known. of which plaintiffs’ the experts defendants has knew a or (One is an expert in correctional mental health, another a mental-health expert on the impact of solitary confinement, another is a medical expert, and a fourth is a dental expert.) any evidence from the defendants. 23 As to those prisoners whose medical, dental, or mental-health records were requested and reviewed by an expert during an inspection, defendants learned that these prisoners had potentially discoverable relevant type of care. particular subject interview with that expert the a information about the Similarly, when an expert in a area requested a prisoner, the had interested been request confidential communicated enough in a particular prisoner to want to interview the prisoner; this likely meant that the expert had learned something about the prisoner that led him or her to believe that the prisoner would be able to provide useful information about the functioning or failures of the relevant aspect of the prison health care system. Thus, for example, when the medical expert asked for a confidential interview with a particular prisoner, it communicated likely had to defense discoverable counsel that information the that prisoner plaintiffs might use to support their claims about insufficient medical care in the prison system. 24 Nevertheless, the court does not have sufficient information adequate to conclude disclosure declarants. as that to this any process of the provided individual First, it is not clear that the process by which interviews were arranged and records requested always made clear to defendants which expert was interested in which prisoner; to the extent that this was not clear, the disclosure would have been insufficient to communicate anything about the subject of the information such a prisoner might have. Second, and perhaps most importantly, to the extent an expert reviewed a prisoner’s records or talked to a prisoner and found nothing significant, plaintiffs at that point were unlikely to use that prisoner to support their claims, and prisoner the would inaccurate. disclosure have See Fed. been R. to defendants overly Civ. P. broad 26(a) of or that simply (requiring disclosure of potential witnesses “that the disclosing party may use to (emphasis added)). support its claims or defenses” At the very least, defendants were 25 entitled to exclusion of those prisoners who had no valuable information and those whom plaintiffs had no possible interest in using as witnesses. C. As the insufficient, Appropriateness of Exclusion disclosures the were court at must least partially determine whether plaintiffs were substantially justified in not formally disclosing nondisclosure these was individuals harmless; if or whether either of these conditions are met, exclusion is not appropriate. R. Civ. P. 37(c)(1) (“If a party fails to the Fed. 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.”).11 11. Citing Nance v. Ricoh Elecs., Inc., 381 F. App'x 919, 922 (11th Cir. 2010) (citing Fabrica Italiana Lavorazione Materie Organiche, S.A.S. v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776, 780 (11th (continued...) 26 The court first assesses whether the failure to provide adequate disclosures was substantially justified. “‘Substantial justification justification to that reasonable whether person the a degree that parties was required party disclosure request. could could to Prod. satisfy differ comply as with a to the The proponent’s position must have a reasonable basis in law and fact.’” Cream requires Liab. Litig., No. In re Denture 09-2051-MD, 2012 WL 5199597, at *5 (S.D. Fla. Oct. 22, 2012) (Altonaga, J.) (citations omitted). Plaintiffs have not demonstrated that their failure was substantially disclosures, the justified. plaintiffs As were not to the March substantially Cir. 1982)), defendants argued that, in deciding whether to exclude the declarations, the court should consider “‘the explanation for the failure to disclose the witness, the importance of the testimony, and the prejudice to the opposing party.’” Technically, the cited cases set forth the standard an appellate court should consider in determining whether a district court abused its discretion by excluding evidence. In any event, the quoted factors are relevant to this court’s analysis. 27 justified in providing a one-size-fits-all disclosure as to the five declarants disclosed as part of a list of 244 prisoners. Plaintiffs presumably knew the particular subjects of information each individual had, and Rule 26 required them to specify at least that much. As to the remaining witnesses, while disclosure of witnesses during an expert inspection might in some circumstance be obligations marshaled court sufficient under Rule sufficient that they 26, facts were and to meet disclosure plaintiffs law to substantially have not convince the justified in assuming that here. However, the nondisclosure was court is essentially persuaded harmless. that the Defendants argue that the insufficient disclosures were harmful because the challenged declarations were critical to plaintiffs’ motion for class certification. To the contrary, the court did not rely upon the challenged declarations at all in resolving the plaintiffs’ motion for class certification on Phase 2A; as the opinion 28 reflects, the certification deposition court’s rested on testimony providers and decision to plaintiffs’ of the corrections grant expert prison officials class evidence, mental-health and employees, documentary evidence from the Department of Corrections and the mental-health providers, and the declarations of the named plaintiffs. See Braggs v. Dunn, 317 F.R.D. 634, 657 n.26 (M.D. Ala. 2016) (“The court notes that, in addition to the expert evidence discussed here, plaintiffs have offered evidence regarding care they and a couple of dozen putative class members have received, in commonality challenge. will be order of the not further policies illustrate and practices the they The evidence regarding the named plaintiffs discussed typicality analysis. need to and does below, in the context of the Although illustrative, the court not base its decision regarding commonality [the only issue to which the declarations were significantly relevant] on the declarations of the unnamed class members; plaintiffs’ expert evidence is 29 more than sufficient.”). Thus, even had the court granted defendants’ motion to strike the declarations, the result of plaintiffs’ motion for class certification for Phase 2A would have been the same. Put another way, defendants’ second motion to strike declarations is essentially moot as to Phase 2A. Second, even had the court considered the declarations in the resolution of class certification, any prejudice from the nondisclosure would have been significantly mitigated. Through their unfettered access to the medical, mental-health, and institutional records of the declarants and to staff who interact with the declarants, defendants were able to respond effectively and in detail to the prisoners’ declarations. The court’s conclusion as to harmlessness is also based on its significant doubt that defendants would have deposed the declarants during the discovery period even had they then received sufficient disclosures. Defendants argue that the fact that they deposed the 30 named plaintiffs and three non-plaintiff prisoners who had information about the named plaintiffs shows that they also would have deposed the 37 declarants during the discovery period. 2016 Telephone 22:13-23:16. Conference (doc. challenged Tr. of Oct. 7, no. 836) at However, defendants’ decision to depose these individuals proves little about their intent to depose non-parties with no information about the named plaintiffs.12 Indeed, defendants have offered no explanation for why they did not depose all seven of the non-plaintiff prisoners whom plaintiffs identified in their initial disclosures in 2014. But what the court finds most telling is defendants’ failure to do anything at all when served 12. Defendants have repeatedly and plainly stated that their defense strategy focused in large part on proving the illegitimacy of the individual named plaintiffs’ claims. Their decision to depose only two groups of prisoners--the named plaintiffs and other prisoners with information about the named plaintiffs--is consistent with this strategy, and inconsistent with the position that they would have deposed non-parties with no information about named plaintiffs. 31 with the March disclosures. In March, when the plaintiffs provided their supplemental disclosures, the court was awash in discovery-related objections, motions, and briefs from both parties; the parties were before the court for hours of telephonic and in-person hearings on these received those motions. supplemental But when disclosures defendants listing 244 prisoners and notifying them that plaintiffs felt they had sufficiently disclosed the identifies of an untold number of other prisoners during the course of discovery, defendants evinced no concern and took no action. They plaintiffs or did the not court raise any about the objection adequacy with of the disclosures, ask plaintiffs to clarify the disclosures, ask them for the identities of the unnamed people plaintiffs believed had been sufficiently disclosed in discovery, or move to compel better responses; they also did not depose, or seek an extension of discovery period--which the court likely would depose any of the 244 listed prisoners. 32 have given--to This was consistent with how defendants proceeded at other points during the case. disclosures, plaintiffs In their 2014 initial identified as witnesses seven non-party prisoners. represented deposed that only plaintiffs. during three the prisoners Yet defendants discovery who potential period were not they named Tr. of Oct. 7, 2016, Telephone Conference (doc. no. 836) at 22:13-23:16. This selectivity could not have been due to any restriction on the number of depositions they could take; indeed, defendants had a lot of depositions discovery left period. In over sum, at the the end court of finds the that defendants made a strategic choice not to try to depose any other non-party prisoners during the discovery period. Defendants did depose many (if not all) of the challenged declarants when given leave to do so in the month before the Phase 2A trial. not change the court’s However, this does assessment intentions during the discovery period. 33 of defendants’ To be clear, the court has no doubt that, had plaintiffs disclosed during the discovery period that they would rely on the 37 challenged declarations prisoners in certification, prisoners. support defendants by their the of submitting motion for class deposed those would have But, obviously, plaintiffs were under no obligation to provide such a specific disclosure; they needed only to identify all potential individuals with information they might use to support their case, and the general subjects of the individuals’ knowledge. Therefore, even had plaintiffs provided fully adequate disclosures of the challenged declarants, defendants still would have received disclosure of well over 244 non-party prisoners. difficult to find Under these circumstances, it is any harm to defendants from the non-disclosure. Even were there some prejudice to defendants from the use of the challenged declarations, the court would not have excluded them as to Phase 2A. Contrary to defendants’ argument that exclusion is ‘automatic,’ the 34 court has the option of excluding evidence or imposing an additional or alternative sanction, imposition of attorneys’ fees. such as See Design Strategy, Inc. v. Davis, 469 F.3d 284, 298 (2d Cir. 2006) (“To the extent that the Advisory Committee Note calls Rule 37(c)'s exclusion of evidence “automatic,” however, that characterization cannot be squared with the plain language of Rule 37(c)(1) itself. Rule 37(c)(1) itself recognizes that ‘[i]n addition to or in lieu of this [preclusion] sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions.’ Thus, the plain text of the rule provides that if an appropriate motion is made and a hearing has been held, the court does have discretion to impose other, less drastic, sanctions.”) Here, exclusion would be an inappropriate remedy. First, as discussed above, defendants had the means to mitigate or prevent any prejudice. have taken issue with plaintiffs’ when they first received them. 35 Defendants could March disclosures Furthermore, defendants have had, throughout the case, unfettered access to the complete medical and mental-health records and institutional files of every prisoner; they also have had ready access to the prison staff who interacted with the declarants and to the providers of medical and mental-health plaintiffs’ interviews care for experts during these singled the prisoners. individuals inspections, When out defendants for could have investigated the care these prisoners did or did not receive. considering As they knew plaintiffs’ experts would be this information, defendants should have known that they needed to be prepared to analyze and rebut it, doing so. plaintiff’s combed and there Indeed, was nothing defendants class-certification through those prisoners’ stopping have, in from response motion, files them and to carefully used them effectively in an effort to rebut their statements. Second, and most importantly, the court finds no evidence of bad faith by the plaintiffs. The court has required all parties to push forward at an extremely 36 demanding pace given the size, complexity, and breadth of the case. discovery. parties The parties engaged in extensive The court is of the impression that the have worked very hard to comply demands the court has placed upon them. with the Under these circumstances, where the court finds no evidence of bad faith, the extreme sanction of exclusion would be unwarranted. While the result in Phase 2A of plaintiffs’ motion for class certification would have been the same regardless of whether the challenged declarations were used, the court and the parties have been put through the hassle of having had to litigate this issue, and thus this litigation has been unnecessarily prolonged. On the one plaintiffs' hand, as disclosures the were court has inadequate indicated, under Rule 26(a) and (e), and, on the other hand, defendants were not diligent in addressing plaintiffs' failure. While it might first appear that this is a wash, it is not: for the court itself has had to expend significant time 37 and resources in litigating this matter. Nevertheless, the court believes that the following result should be imposed: to be sure, because the defendants share significant responsibility for the court’s unnecessary expenditure of resources, they should not be able to recover any fees or expenses from plaintiffs pursuant to Rule 26. But also, because the plaintiffs are culpable for their inadequate disclosures, they should not be allowed to recover attorneys’ fees and expenses (that they would otherwise be entitled to under the fee-shifting connection statutes with the should they in litigation unnecessary prevail) of defendants’ second motion to strike declarations and with the taking of the challenged declarants’ depositions. Of course, the court has not yet tackled plaintiffs’ class-certification motion as to Phase 2B of the litigation--which addresses medical care. Defendants will have ample time to depose the relevant declarants, including D.O. and J.S., before resolution 38 of the motion, and, if they decide that additional briefing is necessary, they will have an opportunity to convince Should the the court court that decide re-briefing that is additional required. briefing is required in light of the depositions, the court will assess prejudice as to Phase 2B at that time, should defendants so request. IV. DEFENDANTS’ FIRST MOTION TO STRIKE Defendants’ first motion to strike focuses on plaintiffs’ September 2016 supplemental disclosures of individuals who had information as to the impact of overcrowding medical and and understaffing mental-health on the care. provision The of disclosures identified 87 individuals with information about the topic, of whom 13 were prisoners; prisoners were named plaintiffs. to and moved prisoners--T.G., ground that to strike T.C., J.E., plaintiffs had 39 8 of the listed Defendants objected the L.T., not remaining and five J.S.--on identified them the as potential witnesses during the discovery period. Defendants argued that, due to the failure to disclose these individuals during the discovery period, plaintiffs should be precluded from relying upon the witnesses’ testimony or any testimony about them for any purpose. As these individuals were also the subject of defendants’ second motion to strike, there is considerable overlap in the analysis of both motions. As mentioned earlier, plaintiffs have conceded that they failed to disclose J.S. as an individual with discoverable information and represented that they will not use him at trial. the use of his (The court has already addressed declaration on class certification.) Accordingly, the motion to strike as to J.S. is moot. As discussed earlier, none of to comply disclosures were sufficient Therefore, the court must the analyze other with Rule whether four 26. the nondisclosure was substantially justified or harmless, 40 and, if not, whether to exclude the evidence or impose some other sanction. As with the second motion to strike, plaintiffs have not shown that the failure to disclose the four individuals was substantially justified. However, the court is convinced that the nondisclosure was harmless. First, as discussed earlier, the court did not rely upon these individuals’ declarations for Phase 2A class certification. be harm To the extent there theoretically could to defendants as to the Phase 2B class-certification decision, the court has addressed it in the context of resolving the second motion to strike declarations. As to the possibility that the challenged individuals might testify at trial, the defendants were allowed to depose the challenged individuals before the Phase 2A trial,13 and will be allowed to do so well in advance of the Phase 2B trial. Accordingly, 13. As it turned out, none of the individuals testified in the Phase 2A trial. (continued...) 41 the challenged nondisclosure was harmless, and exclusion is unwarranted. V. PLAINTIFFS’ MOTION TO STRIKE Plaintiffs moved to strike 15 declarations submitted by defendants in support of their motion for summary judgment and in opposition to class certification, on the ground that these declarants were not properly required by disclosed Rule 26.14 as potential The court witnesses found as plaintiffs’ argument largely unconvincing. Most of the declarations plaintiffs sought to strike were by people employed in the prisons as Health Services Administrators (HSAs), and were submitted to 14. Plaintiffs also asked the court to strike an affidavit, declarations, and a copy of a policy on other grounds. The court previously denied the motion as to the other grounds without prejudice, but asked the defendants to respond to plaintiffs’ argument. After carefully reviewing the briefing, the court sees no reason to revisit its denial of the motion as to those other grounds, and will deny the motion as to those items with prejudice. 42 authenticate medical records of the prisoners whose declarations plaintiff submitted in support of class certification. Defendants were not required to disclose the HSAs in order to submit their declarations for the sole purpose of authenticating records. See Smoot v. Smoot, No. CV 213-040, 2015 WL 2340822, at *6 (S.D. Ga. affidavits Mar. 31, 2015) admissible in (Wood, spite of C.J.) (holding nondisclosure of affiants because they were only used to authenticate documents at issue in the case). and the general subjects Furthermore, the HSAs of their knowledge were sufficiently disclosed to plaintiffs in the course of discovery, and, to the extent they were not, the failure was harmless. Plaintiffs received significant information about the HSAs during the course of discovery. In response to an interrogatory from plaintiffs seeking the persons with primary medical care defendants responsibility at each disclosed major the for provision correctional name, 43 the title, and of facility, facility assignment of most of the challenged HSAs. also learned about the role played by Plaintiffs HSAs through their depositions of two HSAs and learned details about the challenged HSAs during the depositions of various other witnesses. Admittedly, some of the challenged HSA declarants were not named in an interrogatory answer because they were hired answered; as defendants interrogatory supplement harmless HSAs after failed responses. was not because the interrogatory to supplement While this substantially plaintiffs had was their failure justified, received it to was sufficient information through discovery as to the role of the HSAs, and never indicated a desire to depose the HSAs from the facilities where the position changed hands. Thus, plaintiffs clearly suffered no harm from not having the updated names of the HSAs. Plaintiffs declarants who also were challenged not formally 44 three additional disclosed: Joy McCracken, challenge to Baggett15, Angie McCracken’s and Darryl Ellis. declaration was The easily resolved: Defendants were not required to disclose her because she declarations was used that solely plaintiffs for impeachment submitted motion for class certification. with of their See Fed. R. Civ. P. 26(a)(1)(A)(i). Plaintiffs’ unavailing. challenge to Baggett was also While defendants claimed to have “timely disclosed the identity of Angie Baggett and the fact that she possessed discoverable information,” Defs.’ Resp. (doc. no. 891) at 52, they failed to explain how or when they disclosed her identity. assuming defendants witness, this failed failure to to In any case, disclose disclose was her as a likewise 15. As mentioned earlier, plaintiffs also moved to strike Baggett’s affidavit based on alleged errors and inconsistencies in it and her alleged lack of knowledge of the subjects in it. The court previously denied without prejudice the motion to strike her affidavit on these grounds, and will not revisit that decision. In any case, these arguments for striking the declaration (continued...) 45 harmless. Baggett’s declaration merely summarized institutional records regarding the named plaintiffs. Plaintiffs surely were aware of those records before she summarized disclosed them directly, because and officials and staff summarize prisoners’ these there with the records were ability institutional many to were prison review records. As and a result, a written disclosure in regard to Baggett would not have provided any additional benefit to plaintiffs. Plaintiffs’ challenge to the declaration of Ellis, the Director of Nursing at Staton Facility, presents a closer question. Correctional Ellis provided a declaration in which he discussed the orientation for prisoners to a grievance operation of the procedure grievance at procedure; Staton; the use the of grievances and sick call by Staton prisoners generally; the use of grievances and sick call by certain named plaintiffs; and the chronic care clinics. Defendants are unavailing; they go to the weight of declaration, not whether it should be stricken. 46 the did not identify Ellis as a potential witness with knowledge of any subject in their initial disclosures or in a written supplemental disclosure. Defendants subjects of argued his that Ellis’s discoverable identity and information the were sufficiently disclosed during the course of discovery. Defendants point to the fact that one plaintiff testified that Ellis was a registered nurse and gave testimony about the care Ellis provided. Defendants also point to one prisoner’s testimony that Ellis was a “bigwig administrator” at Staton, Defs.’ Resp. (doc. no. 891) at 45, and another person’s testimony that Ellis had worked on the Staton medical staff “longer than anyone else.” Id. at 46. It is clear that Ellis’s identity and role as a nurse, care and accordingly clinics sufficiently discovery. and his prisoners’ disclosed knowledge use through of of sick the the chronic call, process were of The closer question is whether his identity 47 as a potential witness on the subject of defendants’ exhaustion defense was adequately disclosed. The court declines to reach that question, for even if the disclosure disclose was was largely insufficient, harmless. the failure Plaintiffs to learned through discovery that Ellis was a nurse at Staton who had worked there a long time and who had administrative responsibilities and accordingly was likely to have at least some knowledge of the operation and use of the grievance procedure there. However, to eliminate any possible prejudice, the court will allow plaintiffs to depose Ellis before the Phase 2B trial. *** Accordingly, it is ORDERED that: (1) Defendants’ first motion to strike (doc. no. 751) is denied. (2) The court reaffirms its order (doc. no. 909) denying defendants’ second motion to strike (doc. no. 809) and declarants, granting with leave to the depose following 48 the challenged clarification: defendants will not recover any fees or expenses from plaintiffs pursuant to Federal Rule of Civil Procedure 26, and plaintiffs will not be allowed to recover attorneys’ fees and expenses (that they would otherwise be entitled to under the fee-shifting statutes should they prevail) in connection with the litigation of defendants’ second motion to strike (doc. no. 809) and with the taking of the challenged declarants’ depositions. (3) The court reaffirms its orders (doc. nos. 845 & 909) denying plaintiffs’ motion to strike (doc. no. 838), but with prejudice, and with the following clarification: plaintiffs are granted leave to depose Darryl Ellis, the Director of Nursing at Staton Correctional Facility, at a time to be determined in the future. DONE, this the 17th day of February, 2017. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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