STILLMAN v. CITY OF TERRE HAUTE

Filing 84

ENTRY - Mr. Stillman's untimely production of his tax and wage documents listed as items 27 through 29 of his untimely Amended Final Exhibit List was neither substantially justified nor harmless. No sanction other than exclusion of the previo usly-undisclosed exhibits would suffice to mitigate the prejudice to the City this close to trial. Accordingly, the Court SUSTAINS the City's Objections 82 and ORDERS that Mr. Stillman may not present the excluded exhibits at trial. The Cou rt further ORDERS that Mr. Stillman may seek lost wages only through April 27, 2018. The parties should continue their settlement negotiations with the assistance of the Magistrate Judge. (See Entry.) Signed by Judge Jane Magnus-Stinson on 3/19/2019. (DMW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
MONTY STILLMAN,

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) No. 2:17-cv-00394-JMS-DLP
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Plaintiff,
v.
CITY OF TERRE HAUTE,
Defendant.

ENTRY
As the subject of this entry demonstrates, the failure to diligently respond to a discovery
request can carry serious consequences. At the final pretrial conference held on March 15, 2019,
the Court heard argument on the City of Terre Haute’s (“City”) Objections to Mr. Stillman’s
untimely production of evidence concerning his earnings. The parties confirmed that, despite
receiving a request for production of the documents on October 23, 2017, Mr. Stillman failed to
meaningfully produce evidence to support his lost wage claims until the week before the final
pretrial conference—some two and a half months after the close of damages discovery. [Filing
No. 16 at 5.] Mr. Stillman has not identified any substantial justification for the failure to
supplement his document production until the eve of trial, and the failure was not harmless.
Accordingly, the Court SUSTAINS the City’s Objections to Mr. Stillman’s untimely-produced
tax transcripts, W-2s, and earnings statements, [Filing No. 82], and will, as set forth below, limit
Mr. Stillman’s wage claim to damages through the date of his deposition.
I.
BACKGROUND
On March 15, 2019, the Court held a final pretrial conference in this matter. The Court
provided both parties with the opportunity to be heard and present argument on the City’s

Objections to the tax and earnings exhibits listed on Mr. Stillman’s Amended Final Exhibit List.
At the final pretrial conference, the parties confirmed the accuracy of the following facts
concerning discovery in this matter.
On October 23, 2017, the City served Mr. Stillman with the following Requests for
Production:
5. The original or copy (wherein the original is not available) of all of the plaintiff’s
state and federal income tax returns filed with any taxing authority, including all
W-2s forms and 1099 forms and schedules for the past five (5) years.
...
18. Any and all exhibits which plaintiff intends to offer or use at the trial at the
above-captioned matter, which request is to include items whether real,
photographic or documentary, which plaintiff and plaintiff’s counsel intend to offer
at trial.
[Filing No. 82 at 2.] On November 16, 2017, the Magistrate Judge entered a Case Management
Plan (“CMP”), setting forth discovery deadlines to facilitate the efficient and orderly development
of this matter. [Filing No. 16.] In relevant part, the CMP provided that damages discovery “shall
be completed by December 14, 2018.” [Filing No. 16 at 5.]
At some point, Mr. Stillman answered an interrogatory explaining that he did not have the
tax documents and would supplement his production upon receipt. But Mr. Stillman never
answered Request 5 for tax returns. Rather, the only information the City received concerning Mr.
Stillman’s earnings from his work after he was terminated by the City came from nonparty
productions and Mr. Stillman’s April 2018 deposition.
On February 20, 2019, the Court scheduled the final pretrial conference in this matter and
ordered the parties to file a trial exhibit list by March 1, 2019, “listing only the exhibits the party
anticipates actually presenting at trial.” [Filing No. 58 at 2.] The Order further provided that,
“[a]bsent consent of the opposing party, no exhibit that has not been previously listed may be
included.” [Filing No. 58 at 2.] Pursuant to this Order, Mr. Stillman filed his trial exhibit list on

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March 1, 2019, [Filing No. 69], and the City duly objected to certain exhibits on March 8, 2019,
[Filing No. 72]. Also on March 8, after the City had properly filed its objections to Mr. Stillman’s
trial exhibit list, and without seeking or obtaining leave of Court, Mr. Stillman filed a new,
Amended Final Exhibit List. [Filing No. 77.] This new exhibit list, filed without consent of
opposing counsel, listed the following exhibits:
27. Plaintiff’s tax transcripts for the years 2013 through 2017
28. Plaintiff’s W-2 for 2018
29. Plaintiff’s Earnings Statement for 2019
[Filing No. 77 at 3.] These three exhibits had not been produced in discovery or listed on either
the preliminary or final exhibit lists required by the CMP, [see Filing No. 20; Filing No. 46], or in
the trial exhibit list required by the Court’s Order scheduling the final pretrial conference, [see
Filing No. 69].
In addition to not being listed on any exhibit list until a week after the deadline for trial
exhibit lists had passed, the parties confirmed at the final pretrial conference that the documents
had not been produced to the City until the week before the conference. Following the settlement
conference held on March 7, 2019, Mr. Stillman went to the federal building to retrieve the
documents and provided them to his counsel, who in turn provided them to the City. The parties
also confirmed that, aside from this late production, the only information the City had received
regarding Mr. Stillman’s income after his termination from the City came from nonparty
productions and Mr. Stillman’s testimony at his April 2018 deposition. In short, Mr. Stillman
confirmed that he had not, prior to the March 2019 disclosures, supplemented his production to
fully respond to Request 5 of the City’s October 23, 2017 Requests for Production.

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The Court advised the parties at the final pretrial conference that it would take the City’s
Objections to Mr. Stillman’s Amended Final Exhibit List under advisement and rule by separate
written order. The City’s Objections are now ripe for resolution.
II.
DISCUSSION
The City objects to the newly-added exhibits on the grounds that they were neither
produced until long after discovery closed nor included on any timely-filed exhibit list. [Filing
No. 82.] At the final pretrial conference, Mr. Stillman conceded that the exhibits were not timely
produced or listed on an exhibit list. However, Mr. Stillman argued that the City would not be
prejudiced by the late production because it had the opportunity to depose Mr. Stillman and ask
him about his income and because, even if the documents were timely produced, he would have
had to supplement his production to make it current through the time of trial. Mr. Stillman also
explained that he works six days a week in Indianapolis and is therefore very busy. Finally, Mr.
Stillman argued that the newly-produced documents are not complex.
Rule 37(c) provides as follows: “If a party fails to provide information . . . 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.”
Fed. R. Civ. P. 37(c)(1). The relevant cross-reference in this case is Rule 26(e)(1), which provides:
A party who has made a disclosure under Rule 26(a) [requiring initial disclosures,
including “a copy . . . of all documents . . . that the disclosing party has in its
possession, custody, or control and may use to support its claims”]—or who has
responded to an interrogatory, request for production, or request for admission—
must supplement or correct its disclosure or response:
(A) 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 . . . .

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Fed. R. Civ. P. 26(e)(1). The sanction for failure to respond may range from the exclusion of
evidence to an array of alternative or additional sanctions, such as an adverse jury instruction or
reopening discovery subject to the payment of attorney’s fees incurred as a result of the failure to
disclose. Fed. R. Civ. P. 37(c)(1).
Rule 37(c), along with its cross-reference to Rule 26, thus requires a three-step process.
First, the Court must determine whether a party has in fact failed to respond to discovery or
supplement an initial disclosure. Second, the Court must evaluate whether the failure to respond
was “substantially justified or is harmless.” Id. Finally, if the failure to respond was not
substantially justified or harmless, the Court must impose the appropriate sanction. Id.
First, Mr. Stillman’s concessions at the final pretrial conference suffice to establish that he
failed to timely respond to the City’s Requests for Production. Furthermore, Mr. Stillman failed
to comply with the damages discovery deadline set forth in the CMP and, in disregard of the
deadlines set in the Court’s Order scheduling the final pretrial conference, belatedly filed an
“Amended” exhibit list which included exhibits not previously listed.
Next, the Court must determine whether this failure was substantially justified or is
harmless. A failure to respond may be substantially justified if, for example, the information had
been largely disclosed during discovery or was delayed “by a trivial amount of time.” Musser v.
Gentiva Health Servs., 356 F.3d 751, 758-59 (7th Cir. 2004). A failure to respond is not justified,
however, by the ability of the other party to seek the information through other means, and any
claim of justification is further undermined where the producing party “should have known” that
the requested information may be “crucial to their case[] and likely to be contested.” Id. at 759
(internal quotations omitted).

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Mr. Stillman set forth several possible justifications at the final pretrial conference: his
busy work schedule, the City’s ability to question him at his deposition, the unavoidable need for
supplementation of records through the time of trial, and the Court’s ruling on summary judgment
outlining the types of relief available on Mr. Stillman’s ADA claim. These claims fall far short of
demonstrating a substantial justification. To start with, Mr. Stillman’s delay was far from trivial.
The City served its request for documents in October 2017 and damages discovery closed on
December 14, 2018. The March 2019 production came almost a year and a half after the discovery
request and over two and a half months after damages discovery closed. Mr. Stillman’s busy
schedule may have warranted a brief extension if requested. It does not, however, justify complete
nonadherence to court-ordered deadlines in favor of production at a party’s convenience.
The other possible justifications fare no better. The need for additional supplementation at
or near trial does not obviate the need to comply with discovery deadlines and exhibit list
requirements within the original deadlines. The rules require timely production from the onset.
Ignoring the initial duty to produce may not be excused by reference to the additional and separate
obligation of supplementation. Mr. Stillman’s purported concern regarding the summary judgment
ruling is misplaced. The untimely-produced evidence is just as relevant for Mr. Stillman’s
negligence lost wage claim as his ADA claim and, even if the argument had merit, the Court’s
ruling on summary judgment was issued over a month before Mr. Stillman’s belated production.
Given that the City requested the documents in October 2017, before the initial pretrial conference,
Mr. Stillman was on notice that the City viewed the information as important and subject to
dispute. Moreover, the City again raised this issue at Mr. Stillman’s deposition, ensuring that both
Mr. Stillman and his counsel understood the importance of the earnings information. Finally, the
availability of alternative means for the City to acquire the information is insufficient to

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demonstrate justification under Musser.

In short, Mr. Stillman’s late production is not

substantially justified.
Nor are Mr. Stillman’s late responses harmless, despite his suggestion that the documents
are not complex and that the City already had the opportunity to ask Mr. Stillman about his income
at his deposition. The City is entitled to “an idea of where the [plaintiff’s] numbers [are] coming
from” and to “investigate and raise arguments against the claimed damages.” Dynergy Mktg. &
Trade v. Multiut Corp., 648 F.3d 506, 514-15 (7th Cir. 2011). Indeed, that is the whole purpose
of discovery: it ensures that civil trials are not “carried on in the dark” and allows “the parties to
obtain the fullest possible knowledge of the issues and facts before trial.” Hickman v. Taylor, 329
U.S. 495, 501 (1947).
Mr. Stillman’s failure to timely produce the earnings information deprived the City of the
opportunity to investigate and challenge his claimed damages, either at the April 2018 deposition
or by another appropriate mechanism. The complexity or lack thereof is irrelevant to this point,
because even a “simple” record may not tell the whole story upon cross-examination or may
necessitate additional follow-up requests. Now there is no time or opportunity for such additional
discovery, and the discovery rules prohibit Mr. Stillman from defining the scope of the information
available to the City by means of an untimely production. The production, moreover, came just
one month before trial. The grievous untimeliness not only impedes the City’s ability to obtain
the full picture, but also hinders its ability to prepare its defense for trial. Mr. Stillman’s failure to
timely respond was therefore not harmless.
Finally, because Mr. Stillman failed to timely produce the new tax and earnings records,
and because that failure was neither substantially justified nor harmless, the Court must determine
the appropriate sanction. An appropriate sanction must be one that is reasonably “proportionate

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to the infraction” in light of “all the circumstances,” Sherrod v. Lingle, 223 F.3d 605, 612 (7th Cir.
2000), which may, in certain circumstances, be a sanction “lighter” than the sanction of exclusion,
Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 616 (7th Cir. 2002). “But this is not such
a case” where a lighter sanction could remedy the prejudice to the City. Dura Auto., 285 F.3d at
616. Again, to reiterate, despite an appropriate discovery request served in October 2017, Mr.
Stillman did not provide responsive documents until March 2019—just one month before trial.
While reopening discovery to allow a defendant to re-depose a plaintiff concerning such
documents (subject to fee shifting) could be an appropriate sanction under different circumstances,
it is neither a fair nor an equitable sanction given the last-minute production in this case. With just
three weeks until trial, reopening discovery would undoubtedly prejudice the City’s trial
preparation, and that prejudice could not be remedied by shifting attorney’s fees.
As the Court observed at the final pretrial conference, the City has followed all of the
proper procedures for requesting information concerning Mr. Stillman’s wages after he was
terminated from the City. Mr. Stillman’s extreme delay in providing the required discovery
warrants exclusion of the untimely exhibits particularly where he failed to even seek the documents
more than a year after the request. His failure to list the exhibits on any exhibit list other than the
untimely Amended Final Exhibit List, filed without leave of Court, provides an additional basis
for this sanction. Therefore, the Court will SUSTAIN the City’s Objections to items 27 through
29 of Mr. Stillman’s Amended Final Exhibit List and will limit Mr. Stillman’s wage claim to
damages through April 27, 2018—the date of his deposition, at which the City was able to question
Mr. Stillman regarding his earnings. This limitation mitigates the City’s inability to meaningfully
explore Mr. Stillman’s wage claim in light of the belatedly-produced documents and is the last
date at which the City arguably had up-to-date information considering his earnings.

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III.
CONCLUSION
Mr. Stillman’s untimely production of his tax and wage documents listed as items 27
through 29 of his untimely Amended Final Exhibit List was neither substantially justified nor
harmless. No sanction other than exclusion of the previously-undisclosed exhibits would suffice
to mitigate the prejudice to the City this close to trial. Accordingly, the Court SUSTAINS the
City’s Objections [82] and ORDERS that Mr. Stillman may not present the excluded exhibits at
trial. The Court further ORDERS that Mr. Stillman may seek lost wages only through April 27,
2018.
The parties should continue their settlement negotiations with the assistance of the
Magistrate Judge.

Date: 3/19/2019

Distribution via ECF only to all counsel of record.

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