Blair et al v. Transam Trucking, Inc.
MEMORANDUM AND ORDER granting 340 Motion to Strike Certain of Plaintiffs' Supplemental Rule 26 Disclosures. Signed by Magistrate Judge Kenneth G. Gale on 1/25/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LARRY BLAIR and CHARLIE DAVIS,
On Behalf Of Themselves And All Other
Persons Similarly Situated,
TRANSAM TRUCKING, INC.,
Case No.: 09-2443-EFM-KGG
ORDER ON MOTION TO STRIKE SUPPLEMENTAL DISCLOSURES
Now before the Court is Defendant’s “Motion to Strike Certain of Plaintiffs’
Supplemental Rule 26 Disclosures.” (Doc. 340.) Having reviewed the
submissions of the parties, the Court GRANTS Defendant’s motion.
Plaintiffs filed their initial class action Complaint on August 21, 2009,
alleging violations of the Fair Labor Standards Act (“FLSA”), the Kansas Wage
Payment Act (“KWPA”), and the Kansas Minimum Wage and Maximum Hours
Law (“KMWMHL”). (Doc. 1.) Defendant filed its initial Answer on October 14,
2009. (Doc. 10.) Plaintiffs were subsequently granted leave to file an Amended
Complaint, which they did on January 28, 2010. (Doc. 22.) Thereafter, Defendant
filed a Motion for a More Definite Statement (Doc. 23), which was denied by
Magistrate Judge Donald Bostwick on June 7, 2010 (Doc. 29).
The case was subsequently stayed pending a decision by the Kansas
Supreme Court in the matter of Brown v. Ford Storage and Moving Co. Inc., No.
09–101915–A. (See October 12, 2010, text entry.) The undersigned Magistrate
Judge entered a Scheduling Order on October 22, 2012. (Doc. 45.) The case
proceeded through discovery until the parties filed Motions for Summary
Judgment (Docs. 63, 64, 65, 66) in April, 2013, regarding the “threshold issue as to
whether Defendant had misclassified Plaintiffs as ‘independent contractors’ . . . .”
(See Doc. 84, at 2.) These motions were denied by the District Court on November
13, 2013. (Doc. 77.)
Thereafter, another Scheduling Order was entered on January 8, 2014. (Doc.
81.) Plaintiffs were granted leave to file their Second Amended Complaint
(see Doc. 87, 88) and subsequently were allowed to certify the class (Doc. 146). A
supplemental Scheduling Order was entered on September 18, 2015, with a second
supplemental Scheduling Order entered on August 31, 2016. (Docs. 150, 320.)
The latter document includes a discovery deadline of November 16, 2016, with
supplemental Rule 26 disclosures to be served 60 days before. (Doc. 320, at 1-2.)
That Order stated that the supplemental disclosures “must identify all witnesses
and exhibits that probably or even might be used at trial. The opposing party and
counsel should be placed in a realistic position to make judgments about whether
to take a particular deposition or pursue follow-up ‘written’ discovery before the
time allowed for discovery expires.” (Id., at 2.)
The present motion stems from the following categories of witnesses and
documents enumerated in Plaintiffs’ supplemental disclosures:
A.3 All drivers who have opted into the lawsuit, the
majority of whom are listed in the attached Exh. A.
A.18 All individuals identified in depositions in this
A.19 All driver managers employed by Defendant from
2006 to the present.
A.20 All dispatchers employed by Defendant from 2006
to the present.
A.21 All planners employed by Defendant from 2006 to
A.22 All individuals responsible for training, coaching,
recruiting, safety, and safety training from 2006 to the
A.23 All individuals employed by TransAm Leasing, Inc.
from 2006 to the present.
A.26 All individuals identified in discovery responses
including interrogatory answers and documents produced
by either party or received from third parties pursuant to
formal or informal discovery obligations in this matter,
unless objected to by Plaintiffs.
B.12 All deposition exhibits and transcripts and all
documents identified in any deposition exhibit or
transcript, referenced in depositions taken to date listed in
Exh. B and to be produced at further depositions in this
B.13 All documents identified in discovery responses,
including documents produced to date or to be produced
in the future pursuant to document requests,
interrogatories, questionnaires, or Rule 26 Disclosures.
(Doc. 341, at 2; Doc. 341-1, at 2, 4-5.)
Federal Rule of Civil Procedure 26(a) governs the duty to make certain
disclosures. Subsection (a)(1)(A) of Rule 26 requires that the parties, without
awaiting a discovery request, provide “the name . . . 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, unless the use would
be solely for impeachment.” The disclosing party must also provide “a copy – or
description by category and location – of all documents, electronically stored
information, and tangible things that the disclosing party has in its possession,
custody, or control and may use to support its claims or defenses, unless the use
would be solely for impeachment.” Id.
Section (e) of Rule 26 governs the supplementation of disclosures and
discovery responses. It requires a party to “supplement or correct its 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; or as ordered by the court.” Fed.R.Civ.P. 26(e)(1).
The disclosures required by Rule 26 are intended to provide sufficient detail
and clarity to permit the receiving party “‘to make informed decisions about the
discovery necessary to address the specific claims directed against that party, and
to prepare for trial.’” Estate of McDermed v. Ford Motor Co., No. 14-2430-CMTJJ, 2016 WL 1298096, at *3 (D. Kan. 2016) (quoting Sender v. Mann, 225
F.R.D. 645, 655 (D. Colo. 2004)). Rule 26(e)(1) acknowledges that
supplementation of initial disclosures “can take various forms,” but such
“alternative methods for supplementation must be consistent with and further the
objectives underlying the mandatory disclosure requirement.” Id.
Rule 26 also proscribes certain sanctions for the failure to meet its disclosure
The sanction for failing to provide information or to
identify a witness as required by Rule 26(a) or (e), is that
the noncompliant 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.’ The determination of whether a
Rule 26(a) violation is justified or harmless is ‘entrusted
to the broad discretion of the district court.’ While a
court ‘need not make explicit findings concerning the
existence of a substantial justification or the harmlessness
of a failure to disclose,’ the court should be guided by the
following factors: 1) the prejudice or surprise to the
party against whom the testimony is offered, 2) the
ability to cure any prejudice, 3) the potential for trial
disruption if the testimony is allowed, and 4) the erring
party's bad faith or willfulness. The party who failed to
make the required disclosure has the burden to
demonstrate substantial justification or the lack of harm.
In addition to or instead of this sanction, the court ‘(A)
may order payment of the reasonable expenses, including
attorney's fees, caused by the failure; (B) may inform the
jury of the party's failure; and (C) may impose other
appropriate sanctions, including any of the orders listed
in Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi).’ Sanctions
available under Rule 37(b)(2)(A) include ‘prohibiting the
disobedient party from supporting or opposing
designated claims or defenses, or from introducing
designated matters in evidence’ and ‘striking pleadings in
whole or in part.’
Id. (internal citations omitted).
Witness Categories (A.3, A.18-A.23, and A.26).
These categories listed the following types of witnesses: “all drivers,” “all
individuals identified in depositions,” “all driver managers,” “all dispatchers,” “all
planners,” “all individuals responsible for training,” “all individuals employed,”
and “all individuals identified in discovery responses . . . .” (Doc. 341-1.)
Defendant argues that the general descriptive nature of these categories “does
nothing to assist TransAm or its counsel to make realistic judgments about whether
to take depositions of these individuals or to pursue follow-up written
discovery with respect to these individuals.” (Doc. 341, at 5.) Defendant thus
contends these categories do not comply with the second supplemental Scheduling
Order or Rule 26(e) and should be stricken. (Id.) Defendant continues that they
are “severely prejudiced” by the language used in these categories.
Upon being informed of Defendant’s concerns, Plaintiffs informed defense
counsel that “[i]f Plaintiffs make a determination to call a driver as a witness who
has not been deposed by TransAm, Plaintiffs will notify TransAm of that driver’s
identification in time for TransAm to depose that witness.” (Doc. 341, at 6; Doc.
341-3, at 1.) According to Defendant, this equates to Plaintiffs “establishing their
own scheduling order, convenient only to their determination of when they might
notify Defendant of witnesses who may be used to support a case they filed over
seven years ago.” (Doc. 341, at 6.) This, according to Defendant, strips the
Scheduling Order of its purpose.
In filing their Rule 26 Supplemental Disclosures,
Plaintiffs assert that the only witnesses they plan to use at
trial are the individuals listed in their Supplemental
Disclosures (Exhibit A). See also Exhibit C, in which
Plaintiffs’ counsel states that they do not plan on calling
drivers who have not been deposed. These are the only
individuals Plaintiffs have been able to identify. To
cover themselves, however, and allow them to continue
to identify and add witnesses to their Disclosures,
Plaintiffs included Section A categories (3, 18-23, and
26) that include literally thousands of people, and
virtually everyone associated with the case in any
respect. These categories are deficient and do not
comply with the Court’s Second Supplemental
(Doc. 341, at 6.)
The Court finds Plaintiffs’ tactics, including “catchall” categories to
encompass witnesses not yet identified, to be similar to the tactics attempted by the
plaintiff in McDermed.1 Therein, the plaintiffs listed the following category of
documents in their Rule 26(e)(1) supplemental disclosures: “17. Reserved for
further discovery of Rule 30(b)(6) Corporate Representative Deposition (Ram
Krishnaswami) and Defendant’s Expert Dr. William Scott.” (Case No. 14-2430CM-TJJ, ECF Doc. 96-2, at 12.) Judge James found this disclosure to be
inappropriate. “The Court does not find this ‘reservation’ of future discovery to be
a proper supplemental disclosure under Rule 26(e).” McDermed, 2016 WL
1298096, at 14.
Similarly, this Court does not find Plaintiffs’ identification of “all drivers,”
“all individuals identified in depositions,” “all driver managers,” “all dispatchers,”
“all planners,” “all individuals responsible for training,” “all individuals
employed,” and “all individuals identified in discovery responses” to be
appropriate. These categories serve only to protect Plaintiffs, allowing them to
identify specific witnesses at a later date, and in no way place opposing counsel “in
In McDermed, the plaintiffs’ supplemental disclosures were untimely and the
defendant argued that the delay was prejudicial. 2016 WL 1298096, at 10. The Court
finds McDermed to be instructive because the Defendant herein is also attempting to
establish prejudice. Further, the supplementation deadline in the present case expired –
and Plaintiffs failed to timely serve supplemental disclosures – before Plaintiffs
ultimately were allowed to extend the discovery deadline which also extended the
(already expired) supplementation deadline. (See Doc. 341, at 7.)
a realistic position to make judgments about whether to take a particular deposition
or pursue follow-up ‘written’ discovery before the time allowed for discovery
expires.” (Doc. 320, at 2.) To allow Plaintiffs to proceed with these categories of
witnesses would be unduly prejudicial to Defendant. As such, this portion of
Defendant’s motion is GRANTED.
Document Categories (B.12 and B.13).
Category B.12 discloses all “documents identified in any deposition exhibit
or transcript, referenced in depositions taken to date . . . and to be produced at
further depositions in this matter.” (Doc. 341, at 2; Doc. 341-1, at 6.) Category
B.13 references “documents identified in discovery responses, including
documents produced to date or to be produced in the future pursuant to document
requests, interrogatories, questionnaires, or Rule 26 Disclosures.” (Doc. 341, at 3;
Doc. 341-1, at 6.) Defendant complains that this language is “hopelessly vague
and overly broad and would impermissibly require Defendant to scour every
document in this matter.” (Doc. 341, at 9.)
The McDermed court dealt with an analogous situation when the plaintiffs
argued that the defendant was not prejudiced by the untimely disclosure of
witnesses because the witnesses had been mentioned in discovery and documents
exchanged and identified in that case. Therein, Judge James held that the
prior references to these individuals in an interrogatory
answer, during a deposition, in a police report, and in
medical records produced during discovery were not
sufficient to put Defendant on notice that Plaintiffs
intended to list these individuals as Rule 26(a)(1)(A)
witnesses likely to have discoverable information that
Plaintiffs may use to support their claims.
Plaintiffs’ argument that Defendant should have
known Plaintiffs intended to disclose these witnesses
because they were referenced in discovery flies in the
face of the intent and common sense application of Rule
26 disclosures. If a mere reference to an individual in
an interrogatory answer, deposition, or documents
produced during discovery could suffice as a proper
Rule 26 disclosure, then an opposing party would
need to scour every such document and consider
whether to depose or conduct other discovery
regarding each person referenced in such documents.
This is contrary to the disclosure requirements of
Rule 26, which place the burden on each party to
identify individuals likely to have discoverable
information that party may use to support its claims
or defenses, so that the opposing party can make an
informed discovery plan.
2016 WL 1298096, at 5 (emphasis added).
Similarly, Defendant in the present case should not be required to “scour
every . . . document” identified or produced in this case in an effort to surmise
which documents Plaintiffs may use at trial. Rule 26 places the burden on the
disclosing party to specifically identify the witnesses and documents it may call at
trial. Plaintiffs’ tactics are contrary to the intentions of the rule. As such, this
portion of Defendant’s motion is, also, GRANTED.
Defendant’s motion (Doc. 340) is, therefore, GRANTED. Categories A.3,
A.18-23, A.26, B.12, and B.13 are stricken from Plaintiff’s supplemental
disclosures (Doc. 341-1).
IT IS SO ORDERED.
Dated this 25th day of January, 2017, at Wichita, Kansas.
s/ Kenneth G. Gale
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
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