Smiley v. Hologic, Inc. et al

Filing 68

ORDER granting in part 67 Joint Motion to Extend Deadline to Address Discovery Dispute Regarding Supplemental Responses. Signed by Magistrate Judge Mitchell D. Dembin on 08/02/2017. (ja1)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 16-cv-0158-WQH-MDD KARMEN SMILEY, Plaintiff, 13 14 v. 15 16 HOLOGIC, INC., Defendant. 17 ORDER ON JOINT MOTION TO EXTEND DEADLINE TO ADDRESS DISCOVERY DISPUTE REGARDING SUPPLEMENTAL RESPONSES [ECF NO. 67] 18 19 20 Before the Court is the Joint Motion to Extend the Deadline to Address 21 Discovery Dispute Re: Supplemental Discovery Responses filed on August 1, 22 2017. (ECF No. 67). The Joint Motion is GRANTED IN PART as provided 23 below. 24 25 26 LEGAL STANDARD Rule 26(e)(1)(A), Fed. R. Civ. P., governs supplementation of disclosures and responses. It provides: 1 16-cv-0158-WQH-MDD 1 A party who has made a disclosure under Rule 26(a) – or who has responded to an interrogatory, request for production, or request for admission – must supplement or correct its disclosure or response . . . 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…. 2 3 4 5 6 7 8 Should a party fail to timely supplement a disclosure or response, Rule 9 37(c)(1), Fed. R. Civ. P., provides the available remedies, as follows: 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. 10 11 12 13 14 Additional sanctions also are available for failing timely to supplement a 15 disclosure or response. See Rule 37(c)(1)(A)-(C). 16 17 DISCUSSION Discovery in this case closed on September 1, 2016. (ECF No. 10 ¶ 3). 18 The time to bring before the Court any disputes regarding the adequacy of 19 discovery responses is long past. According to the Joint Motion, Plaintiff has 20 provided Defendant with a number of supplemental responses and Defendant 21 has requested that Plaintiff provide further supplemental responses to 22 previously served discovery. See Joint Motion at 2 (ECF No. 67 at 2). The 23 parties appear to be meeting and conferring regarding the supplemental 24 responses but seek leave of Court to bring any disputes regarding 25 supplemental responses before the Court no later than September 15, 2017. 26 Id. at 2-3. 2 16-cv-0158-WQH-MDD 1 Supplemental responses or disclosures are a one-way street: the burden 2 is placed upon the producing party to supplement responses or disclosures in 3 a timely manner upon finding that their initial responses or disclosures are 4 materially incomplete or inaccurate. See Rule 26(e)(1)(A). The receiving 5 party cannot compel supplemental disclosures or responses nor is there a 6 procedural vehicle for the receiving party to challenge the sufficiency of a 7 supplemental disclosure. The receiving party is limited to challenging 8 supplemental disclosures or responses as untimely. See Rule 37(c)(1). The 9 producing party carries the burden of convincing the Court that the 10 supplemental disclosures or responses are timely and, if not, the untimeliness 11 is substantially justified or harmless. Id. 12 The sufficiency of a supplemental response or disclosure only comes into 13 play if a party seeks to introduce evidence that the other party claims was 14 not previously disclosed in response to or in a supplement to a previous 15 discovery request. That is a matter for the district court to determine in 16 considering whether that evidence must be excluded under Rule 37(c)(1). 17 CONCLUSION 18 The Joint Motion is GRANTED IN PART. The parties may bring 19 before this Court any disputes regarding the timeliness of supplemental 20 disclosures or responses within thirty (30) days of the service of the 21 supplemental disclosures or responses. 22 IT IS SO ORDERED. 23 Dated: August 2, 2017 24 25 26 3 16-cv-0158-WQH-MDD

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