CRST Expedited, Inc v. Transam Trucking Inc

Filing 133

ORDER denying 106 Sealed Motion to Strike CRST's Second Rule 26(a) Filing as Out of Time filed by Transam Trucking Inc (See Order Text). Signed by Magistrate Judge Kelly Mahoney on 1/16/2018. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
CRST EXPEDITED, INC.,
Plaintiff,

No. 16-CV-0052-LTS

vs.
TRANSAM TRUCKING, INC.,

ORDER ON MOTION TO
STRIKE CRST’S SECOND
RULE 26(a) FILING

Defendant.
____________________
This matter is before the court on the motion to strike CRST’s second rule 26(a)
filing as out of time (Doc. 106), filed by Defendant TransAm Trucking, Inc. (TransAm).
TransAm argues the supplemental disclosure constitutes an untimely amendment of the
complaint and should therefore be stricken. Plaintiff CRST Expedited, Inc. (CRST) filed
a resistance to the motion (Doc. 126), arguing that the supplemental disclosure was timely
and that even if not, late disclosure was substantially justified and harmless.
The Rules of Civil Procedure require parties to disclose certain information,
including information about “each individual likely to have discoverable information.”
Fed. R. Civ. P. 26(a)(1)(A)(i). On March 6, 2017, the court in this case ordered the
parties make these initial disclosures by March 23, 2017. Doc. 34; see also Fed. R. Civ.
P. 26(a)(1)(C). CRST made its initial disclosures pursuant to Rule 26(a)(1) on March
23, 2017. Doc. 126-2. This disclosure included a list of 293 CRST drivers recruited by
TransAm between August 2015 and March 2017. Id. A party must also “supplement or
correct” any initial disclosure “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). In this case, CRST
supplemented its Rule 26(a)(1)(A)(i) disclosure on April 12, 2017 (Doc. 106-3) and again
on October 11, 2017 (Doc. 106-4).

TransAm now seeks to strike the second

supplementation made on October 11, 2017, which contains a list of 19 additional CRST
drivers recruited to work for TransAm since March 2017 (Doc. 126 at 2). CRST
previously disclosed two of the names included in the second supplementation (as drivers
recruited but not hired by TransAm). Doc. 106-4.
“A supplemental disclosure under Rule 26(e)(1)(A) is timely if it is made as soon
as possible.” Bruhn Farms Joint Venture v. Firearm’s Fund Ins. Co., No. 13-CV-4106CJW, 2017 WL 632105, at *4-5 (N.D. Iowa Feb. 13, 2017) (quoting Hypertherm, Inc.
v. Am. Torch Tip Co., No. 05-cv-373-JD, 2009 WL 703271, at *1 (D.N.H. Mar. 16,
2009)) (finding a violation of Rule 26(e) when party disclosed “entirely new categories
of damages” at the close of discovery and two months before trial because the information
should have been apparent to the party from the beginning of the case); see also
Hypertherm, Inc., 2009 WL 703271, at *1-2 (noting party’s unexplained failure to
supplement discovery disclosures until the deadline for final pretrial filings as basis for
exclusion of the evidence at trial); Malozienc v. Pac. Rail Servs., 572 F. Supp. 2d 939,
943 (N.D. Ill. 2008) (finding supplement of initial disclosure timely when made
immediately after the party became aware of the information); Walls v. Paulson, 250
F.R.D. 48, 53 (D.C. Cir. 2008) (finding violation of Rule 26(e) when party delayed
supplementation of discovery responses, without explanation, for a period years).
Supplementations need not be made as each new item of information is
learned but should be made at appropriate intervals during the discovery
period, and with special promptness as the trial date approaches. . . . The
obligation to supplement disclosures and discovery responses applies
whenever a party learns that its prior disclosures or responses are in some
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material respect incomplete or incorrect. There is, however, no obligation
to provide supplemental or corrective information that has been otherwise
made known to the parties in writing or during the discovery process . . . .
Fed. R. Civ. P. 26(e) advisory committee’s note to 1993 amendment. If a party fails to
supplement its Rule 26(a) disclosures, the court may prohibit the party from using the
information in relation to any motion, hearing, or at trial, if the court determines the
failure was not substantially justified and was not harmless. Fed. R. Civ. P. 37(c)(1).
TransAm argues that CRST’s supplemental disclosure amounts to an improper
amendment of the complaint. Doc. 106-1 at 2. Rule 26 requires the disclosure of
individuals who may have discoverable information, which will encompass a broad list
of individuals. CRST was obligated to update its disclosures and would have been in
violation of the discovery rules had it failed to do so. The disclosure provided on October
11 (Doc. 106-4) clearly supplements CRST’s Rule 26(a) disclosures. CRST was required
to make this supplemental disclosure under the rules, and I find CRST did so through its
second supplemental disclosure (Doc. 106-4).
The key issue is whether the supplemental disclosure was timely. I find that it
was. I credit CRST’s argument that it could not have been aware of these additional
drivers at the time of its initial disclosure in March 2017 because they had not yet been
recruited by TransAm. It is not completely clear from this record when after March 2017
CRST learned these additional 19 drivers had been recruited by TransAm. It seems
TransAm would have known the identities of these drivers earlier or around the same
time as CRST because TransAm hired these drivers.

Therefore, the supplemental

disclosure could not have been overly surprising to TransAm. Although perhaps CRST
could have disclosed the names of these drivers earlier than October 11, 2017, the
disclosure was made three months in advance of the discovery deadline of January 12,
2018 (Doc. 34). There also appears to be no dispute that CRST produced significant
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discovery materials regarding these drivers on November 22, 2017. See Doc. 126 at 2.
Because I find CRST acted timely, I need not address whether timing of the supplemental
disclosures was substantial justified or harmless. See Malozienc, 572 F. Supp. 2d at 94344.
For the reasons stated above, I FIND that CRST timely supplemented its initial
disclosures and that TransAm’s motion to strike Rule 26(a) filing as out of time (Doc.
106) should be denied.
IT IS SO ORDERED this 16th day of January, 2018.

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