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, )

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.

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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