MILLEN v. GEORGIA RENEWABLE POWER LLC et al

Filing 37

ORDER granting in part and denying in part 34 Motion in Limine Ordered by US DISTRICT JUDGE CLAY D LAND on 09/16/2022 (CCL)

Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
AGNES MILLEN, et al.,

*

Plaintiffs,

*

vs.

*

GEORGIA RENEWABLE POWER, LLC,
et al.,

*

CASE NO. 3:21-CV-42 (CDL)
*
Defendants.
*
O R D E R
Plaintiffs

filed

a

motion

to

exclude

thirteen

witnesses

disclosed by Defendants Georgia Renewable Power, LLC and GRP
Franklin, LLC (“GRP Defendants”) on or shortly before the August
15,

2022

discovery

deadline.

Plaintiffs

contend

that

these

witnesses were not timely disclosed under the Federal Rules of
Civil Procedure or the Court’s Rules 16/26 Order.

As discussed

below, the motion to exclude (ECF No. 34) is granted in part and
denied in part.
Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires a
party

to

disclose

“the

name

and,

if

known,

the

address

and

telephone number of each individual likely to have discoverable
information--along with the subjects of that information--that
the disclosing party may use to support its claims or defenses.”
Rule

26(e)

disclosures

requires
“in

a

a

timely

party

to

supplement

manner

. . .

if

the

its

initial

additional

or

Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 2 of 8

corrective information has not otherwise been made known to the
other parties during the discovery process or in writing.”
R. Civ. P. 26(e)(1)(A).

Fed.

The Court issued a Rules 16/26 Order in

this action, which states that when supplementation under Rule
26(e) is required, “supplemental responses shall be served upon
the

opposing

information

party

within

requiring

the

fourteen

days

supplemental

of

learning

response,

of

the

unless

the

Court otherwise extends the supplemental response period upon
motion of a party.”

Rules 16/26 Order 6, ECF No. 10.

Under

Rule 16(b)(3), a scheduling order may modify the timing of Rule
26(e)

disclosures,

fourteen-day

rule

requirement.
days

of

which

means

trumps

Rule

that

the

26(e)’s

Rules

more

16/26

general

Order’s
“timely”

Thus, if supplementation occurs within fourteen

learning

supplementation

is

of

the

timely.

supplemental
If

a

party

information,

fails

to

the

identify

a

witness as required by 26(e), “the party is not allowed to use
that . . . witness to supply evidence on a motion, at a hearing,
or at a trial, unless the failure to identify was substantially
justified or harmless.
On

August

4,

Fed. R. Civ. P. 37(c)(1).

2022,

eleven

days

before

the

discovery

deadline, the GRP Defendants supplemented their Rule 26(a)(1)
initial disclosures to add the following individuals as people
who may have discoverable information on the GRP Defendants’
defenses:

Stacy

Anderson,

Susan

2

Hart,

James

Russell

Huffman,

Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 3 of 8

Quang Le Hung, Huong L. Nguyen, Frank Ginn, and Beth Thomas.
The GRP Defendants submitted another supplement to their initial
disclosures on August 15, 2022, the discovery deadline.

In that

supplemental disclosure, the GRP Defendants disclosed additional
individuals as people who may have discoverable information on
the

GRP

Defendants’

McDonald,

Alan

defenses:

Powell,

Billy

Tonya

Morse,

Powers,
Harris

Lauren

Little,

“Bubba”
and

John

Phillips.
The GRP Defendants contend that the supplemental disclosure
of Billy Morse, Harris Little, and John Phillips on August 15,
2022 was timely because the GRP Defendants did not learn that
these individuals may have discoverable information until the
morning of August 15, 2022, when they were identified during the
telephone
Defendants

interview

of

disclosed

another
all

witness.

three

of

Therefore,

these

witnesses

the

GRP

within

fourteen days of learning their identities, so their disclosure
was timely under the 16/26 Order.

Similarly, the GRP Defendants

argue that the supplemental disclosure of Alan Powell on August
15, 2022, was timely because he was not mentioned as someone
with discoverable information until the deposition of the GRP
Defendants’ 30(b)(6) witness on August 9, 2022.

The 30(b)(6)

witness

from

testified

that

he

learned

else, but he did not say when.

about

Powell

someone

There is no indication in the

present record that the GRP Defendants learned about Powell more

3

Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 4 of 8

than

fourteen

days

before

his

identity

was

disclosed

to

Plaintiffs, so the Court cannot conclude that the disclosure was
untimely.
exclude

For these reasons, the Court denies the motion to

Alan

Powell,

Billy

Morse,

Harris

Little,

and

John

Phillips.
Turning to the other nine witnesses that were disclosed in
August 2022, the GRP Defendants do not seriously dispute that
they

learned

the

identities

of

these

witnesses

more

fourteen days before the relevant supplemental disclosure.

than
The

GRP Defendants argue, though, that these nine witnesses were
“made known” to Plaintiffs during discovery, so even if their
supplemental
Again,

disclosure

Rule

was

26(e)(1)(A)

untimely,

it

requires

was

not

required.

supplemental

initial

disclosures “if the additional or corrective information has not
otherwise

been

made

known

to

the

discovery process or in writing.”

other

parties

during

the

The GRP Defendants argue that

formal supplements should not be required if a potential witness
is mentioned in a deposition or in documents produced during
discovery.

In support of this argument, the GRP Defendants cite

one unpublished district court order where the judge concluded
in

a

during

footnote

that

discovery

the

because

witnesses
they

were

were

adequately

“identified

by

deponents and in documents produced to plaintiffs.”
v.

Forsyth

Cnty.

Sch.

Dist.,

4

No.

2:06-CV-78-WCO,

disclosed
various
Wilbourne
2008

WL

Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 5 of 8

11417233, at *3 n.7 (N.D. Ga. Mar. 20, 2008).

Wilbourne does

not

witnesses

explain

provided

how

much

during

the

information

about

depositions—whether

the
they

were

was

merely

mentioned or were, in the words of the judge, “identified.”
Thus, even if Wilbourne were sufficiently persuasive, it does
not support Defendants’ argument.1
The Court understands that the 1993 advisory committee’s
note to Rule 26(e) states that a previously unidentified witness
is “made known” if she is “identified during the taking of a
deposition.”
1993

Fed. R. Civ. P. 26(e) advisory committee’s note to

amendment

(emphasis

added).

Again,

Rule

26(a)(1)(A)

requires disclosure of the name of each individual “that the
disclosing party may use to support its claims or defenses,”
along with the subject matter of that person’s information.

So,

the disclosing party must put the other side on notice that it
may rely on the individual as a witness.
witness simply mentioning a

person

The Court finds that a

in a deposition

does not

disclose that a party may rely on that person to support its
claims

or

defenses,

so

it

does

not

demonstrate

that

the

individual was “made known” as a potential witness under Rule
26(e).

Likewise,

the

fact

that

1

a

person’s

name

appears

in

Defendants also rely on an unpublished report and recommendation by a
federal magistrate judge, but it does not support Defendants’ argument
because it was clear that the disputed witnesses were all disclosed in
interrogatory responses well before the close of discovery.
Nix v.
McMaster Carr Supply Co., No. 117CV02785SCJJFK, 2018 WL 7348862, at *2
(N.D. Ga. Dec. 27, 2018).

5

Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 6 of 8

documents produced in response to document requests does not
demonstrate that the individual was “made known” as a potential
witness.

Accordingly, the Court rejects the GRP Defendants’

argument that the nine witnesses were “made known” to Plaintiffs
simply

because

they

were

mentioned

in

depositions

and

in

documents produced during discovery.
The

GRP

Defendants

did

not

establish

that

they

first

learned of nine of the potential witnesses within fourteen days
of disclosing them in August 2022 (Stacy Anderson, Susan Hart,
James Russell Huffman, Quang Le Hung, Huong L. Nguyen, Frank
Ginn, Beth Thomas, Tonya Powers, and Lauren “Bubba” McDonald).
Rather,
these

the

GRP

Defendants

potential

witnesses

acknowledge
well

that

before

they

knew

disclosing

about
them.

Furthermore, they not only waited more than fourteen days to
disclose
expiration

them,

but

deadline.

they
The

disclosed
GRP

them

Defendants

at

the

knew

discovery

about

Stacy

Anderson and Susan Hart by March 3, 2022, when their expert
completed

and

served

his

case

study

regarding

Anderson’s

property; they were aware of James Russell Huffman when he was
hired to handle day-to-day operations of the plant in February
or March 2022; they learned about Quang Le Hung and Huong L.
Nguyen by June 2022, when a GRP employee mentioned them during a
deposition; and they were aware of Frank Ginn, Beth Thomas,
Tonya Powers, and Lauren “Bubba” McDonald

6

by 2019,

when GRP

Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 7 of 8

executives communicated with them multiple times about neighbor
concerns regarding the plant.

Thus, these witnesses were not

timely disclosed as required by Rule 26(e) and the 16/26 Order.
The

GRP

Defendants

did

not

establish

that

their

failure

to

disclose these nine witnesses was substantially justified—they
pointed to no reason why they could not have complied with the
disclosure deadline.
the

disclosure

was

And the failure was not harmless because
done

at

the

very

end

of

discovery,

so

Plaintiffs could not conduct any discovery regarding these nine
witnesses.

For

these

reasons,

the

GRP

Defendants

are

not

permitted to use the following witnesses to supply evidence on a
motion, at a hearing, or at trial: Stacy Anderson, Susan Hart,
James Russell Huffman, Quang Le Hung, Huong L. Nguyen, Frank
Ginn, Beth Thomas, Tonya Powers, and Lauren “Bubba” McDonald.
CONCLUSION
For

the

reasons

set

forth

above,

Plaintiffs’

motion

to

exclude (ECF No. 34) is granted to the extent that the GRP
Defendants shall not be permitted to use the following witnesses
to supply evidence on a motion, at a hearing, or at trial: Stacy
Anderson,

Susan

Hart,

James

Russell

Huffman,

Huong L. Nguyen, Frank Ginn, Beth Thomas,
Lauren “Bubba” McDonald.

Quang

Le

Hung,

Tonya Powers,

and

The Court declines to impose other

sanctions.

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Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 8 of 8

The motion is denied to the extent that the GRP Defendants
shall not be precluded from using the following witnesses to
supply evidence: Alan Powell, Billy Morse, Harris Little, and
John Phillips.
proposed

The parties shall confer and agree on a jointly

amendment

to

the

scheduling

order

for

the

limited

purpose of allowing written discovery and depositions regarding
these

newly

disclosed

witnesses.

deadline remains unchanged.

The

dispositive

motion

The Court plans to try this action

during its May 2023 Athens trial term.
IT IS SO ORDERED, this 16th day of September, 2022.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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