Rogers v. Bank of America, N.A.

Filing 47

MEMORANDUM AND ORDER granting 34 Plaintiff's Motion to Compel Defendant's Supplemental Disclosures; and finding as moot 20 Plaintiff's Motion to Compel Defendant's Required Initial Disclosures. Pursuant to Fed. R. Civ. P. 37( c)(1), Defendant is hereby prohibited from using any witness who is not already listed in either its December 13, 2013 Initial Disclosures, May 22, 2014 supplemented disclosures, or August 26, 2014 Supplemental Disclosures to supply evidence on a mot ion, at a hearing, or at trial, unless Defendant makes a showing that its failure to disclose such witness was substantially justified or is harmless. To the extent that Defendant has a last known address and telephone number for the former employees listed in its Supplemental Disclosures, it shall provide this information to Plaintiff within 14 days of the date of this Order or advise Plaintiff that it does not have such information. It is further ordered that on or before 10/10/2014, Pl aintiff shall file an affidavit itemizing the reasonable expenses, including attorney's fees, Plaintiff incurred in making the 34 Motion to Compel Defendant's Supplemental Disclosures. Defendant shall have until 10/24/2014, to file a response to the affidavit. The Court will then issue a second order, specifying the amount and time of payment. Signed by Magistrate Judge Teresa J. James on 9/19/2014. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHELLI F. ROGERS,
Plaintiff,
vs.
BANK OF AMERICA, N.A.,
Defendant.

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Civil Action No. 13-1333-CM-TJJ

MEMORANDUM AND ORDER
In this removed Kansas Consumer Protection Act1 case, Plaintiff alleges that Defendant
advised her to default on her mortgage before Defendant could consider a loan modification.
When she applied for a loan modification after defaulting, Plaintiff alleges that Defendant
engaged in an intentional and deceptive scheme to delay review of Plaintiff’s modification
application and repeatedly misrepresented to Plaintiff that it had not received required
documentation for the loan modification.
This matter is presently before the Court on Plaintiff’s Motion to Compel Defendant’s
Required Initial Disclosures (EF No. 20) and Plaintiff’s Motion to Compel Defendant’s
Supplemental Disclosures (ECF No. 34). Plaintiff requests that the Court compel Defendant to
supplement its initial disclosures, claiming that the information provided by Defendant does not
satisfy the requirements of Fed. R. Civ. P. 26(a)(l)(A)(i) mandating that Defendant identify
specific individuals it may use to support its claims or defenses. As set forth below, the Court

1

K.S.A. 50-623 et seq.

grants Plaintiff’s Motion to Compel Defendant’s Supplemental Disclosures and finds her
previously filed Motion to Compel Defendant’s Required Initial Disclosures to be moot.
I.

Relevant Facts
Plaintiff filed her original Petition in the District Court of Sedgwick County, Kansas on

August 2, 2013. Defendant thereafter removed the case to this Court on September 9, 2013.
The parties exchanged their Rule 26(a)(1) initial disclosures on December 13, 2013. In its
Initial Disclosures, Defendant identified its “Custodian of Records and corporate
representative(s)” as individuals likely to have discoverable information that it may use to
support its claims and defenses. 2 It also listed Plaintiff and “all individuals designated by
Plaintiff in her initial disclosures under Fed. R. Civ. P. 26.”3 In her initial disclosures, Plaintiff
identified herself, Defendant’s attorney of record in the foreclosure action, and fourteen of
“Defendant’s known employees who interacted with Plaintiff.”4 Plaintiff identified seven of the
employees by both first and last name, while she identified the other seven employees by first
name only.
The Court held a scheduling conference on December 20, 2013, at which it set a July 31,
2014 deadline for the completion of all discovery, as well as a deadline for the supplementation

2

Def.’s Initial Disclosures (ECF No. 20-1).

3

Id.

4

Pl.’s Initial Disclosures (ECF No. 20-2).
2

of disclosures of 40 days before the discovery deadline.5 At the scheduling conference, Plaintiff
claimed that Defendant’s Initial Disclosures did not comply with Rule 26(a)(1)(A). The
Magistrate Judge assigned to the case at that time agreed with Plaintiff and indicated that
Defendant’s disclosures appeared deficient. A couple of hours after the scheduling conference,
Plaintiff’s counsel emailed defense counsel, inquiring about possible incomplete documents
provided with Defendant’s initial disclosures. Defense counsel responded that she would check
with her client.
On February 4, 2014, Plaintiff’s counsel followed up on her December 20 email:
I'm simply following up on my December 20th email as we've never heard back
from you. By chance have you received any more information to send our way?
Additionally, in the process of reviewing the initial disclosures provided thus far
we discovered there is other information still missing. If necessary, we’ll be
sending a more formal letter with our detailed request in the future. Please feel
free to call me to discuss.6

5

Paragraph 2.a. of the Scheduling Order (ECF No. 8) provides that:

Supplementations of those disclosures under Fed. R. Civ. P. 26(e) must be served at such times
and under such circumstances as required by that rule. In addition, such supplemental disclosures
must be served in any event 40 days before the deadline for completion of all discovery. The
supplemental disclosures served 40 days before the deadline for completion of all discovery 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. Should anything be included in the final disclosures under Fed. R. Civ. P.
26(a)(3) that has not previously appeared in the initial Rule 26(a)(1) disclosures or a timely Rule
26(e) supplement thereto, the witness or exhibit probably will be excluded from offering any
testimony under Fed. R. Civ. P. 37(c)(1).
6

ECF No. 20-3.
3

On February 28, 2014, Plaintiff’s counsel sent a letter to Defendant’s counsel as a
reminder that Defendant had failed to provide the information required by Rule 26(a)(1) and that
Plaintiff was unable to make an informed settlement offer without the information.
On March 18, 2014, Plaintiff’s counsel sent another letter to Defendant’s counsel
regarding Defendant’s Initial Disclosures. In the letter, Plaintiff’s counsel stated:
Pursuant to Fed. R. Civ. P. 26(a)(1) and the Court’s Order, Defendant's initial
disclosures were due in December 2013. To date, Defendant has failed to
adequately provide the information required. To our knowledge, the specific
information Defendant needs to provide is explained below. The initial
disclosures are now long past due and are holding up our ability to move this case
forward.
This letter serves as our formal attempt to confer regarding the deficiencies in
Defendant’s initial disclosures. We have attempted to confer with you by email to
no avail. We intend on arranging a telephone conference with the Court and filing
a Motion to Compel if we do not receive complete and proper responses by March
25, 2014. Please advise your client that we will seek attorney fees if we have to
proceed in this manner.7
On April 8, 2014, Plaintiff’s counsel left Defendant’s counsel a voicemail, followed by
an email stating she hoped to get the Initial Disclosures issue resolved in the next 24 hours.8
Plaintiff’s counsel contacted Defendant’s counsel by telephone on April 9, 2014,
regarding Plaintiff’s request for complete initial disclosures. Plaintiff’s counsel indicated that she
would wait until April 14, 2014 for a complete response from Defendant, and if she did not
receive one, she would request the Court’s involvement.

7

ECF No. 20-5.

8

ECF No. 20-6.
4

On April 17 and 23, 2014, Plaintiff’s counsel emailed Defendant’s counsel following up
on Plaintiff’s request for initial disclosures and inquiring about arranging a telephone conference
with the Court.9
On May 20, 2014, Plaintiff filed a Motion to Compel Defendant’s Required Initial
Disclosures (ECF No. 20).
On May 22, 2014, Defendant’s counsel sent a letter to Plaintiff’s counsel stating that
“[p]rior to the filing of your motion to compel with respect to the alleged deficiencies in the
Initial Disclosures provided by [Defendant] in December, I was in the process of finalizing this
response to your letters and supplementing certain information in [Defendant’s] disclosures.”10
In the letter, Defendant contended that it had complied with its obligations under Rule 26(a)(1),
but would provide more information about its current or former employees named in Plaintiff’s
initial disclosures. It then provided additional information for those employees.
On June 3, 2014, Defendant filed its response in opposition to Plaintiff’s motion to
compel initial disclosures, claiming that its initial disclosures complied with Rule 26(a)(1)(A). It
also argued that the motion was untimely under D. Kan. Rule 37.2 because it was not filed within
30 days of service of its Initial Disclosures, served on December 13, 2013.
On July 23, 2014, Plaintiff filed an unopposed motion for an extension of time to file a
motion to compel with respect to Defendant’s Supplemental Initial Disclosures. Plaintiff’s

9

ECF No. 20-7.

10

ECF No. 33 at 11.
5

deadline for filing a motion to compel was extended up to and including fourteen days from
Plaintiff’s receipt of all documents in the possession of Defendant’s counsel.
On August 11, 2014, Plaintiff filed a Motion to Compel Defendant’s Supplemental
Disclosures (ECF No. 34). In this motion, Plaintiff claimed that Defendant’s supplemental
disclosures served on May 22 were still deficient because Defendant failed to satisfy its
obligation under Rule 26(a)(l)(A)(i) to name specific individuals it may use to support its claims
or defenses by merely listing the generic titles of “records custodians” and “corporate
representatives.”
On August 12, 2014, twelve days after the discovery deadline expired, the parties filed a
joint motion to amend the Scheduling Order deadlines (ECF No. 35) for completion of
discovery, filing dispositive motions, and for the final pretrial conference.
On August 15, 2014, the Court held a telephone status conference on the parties’ joint
motion to extend the Scheduling Order deadlines and the issues identified in Plaintiff’s Motion to
Compel Defendant’s Supplemental Disclosures. After hearing from counsel, the Court advised
the parties that absent persuasive legal authority to the contrary, Defendant merely identifying
individuals generically, such as its “corporate representative,” was insufficient to satisfy its
initial disclosure obligations under Rule 26(a)(1)(A)(i).11 The Court gave Defendant until August
26, 2014 to file a response with any supplemental authority for the Court to review, and to attach
its updated Supplemental Rule 26(a) initial disclosures. The Court instructed Defendant that its

11

See Aug. 15, 2014 Status Conference Order and Amended Scheduling Order (ECF No.

40).
6

updated supplemental disclosures were to identify “each individual likely to have discoverable
information—along with the subjects of that information—that [Defendant] may use to
support its claims or defenses.”12 The Court also reminded the parties of the consequences of
failing to provide information or to identify a witness as required by Rule 26(a) or (e). In
particular, the Court noted that Rule 37(c)(1) provides that a party who fails to provide the
information required by Rule 26(a) is not allowed to use the witness to supply evidence on a
motion, at a hearing, or at a trial. The Court also noted that one of the sanctions also available for
a failure to disclose or supplement, in addition to monetary sanctions, is prohibiting “the
disobedient party from supporting or opposing designated claims or defenses, or from
introducing designated matters in evidence.”13
On August 26, 2014, Defendant filed its Opposition to Plaintiff’s Motion to Compel
Supplemental Disclosures (ECF No. 42), and attached its Supplemental Disclosures Pursuant to
Fed. R. Civ. P. 26(a)(1) and 26(e) (ECF No. 42-1).
In an email dated August 28, 2014, Plaintiff’s counsel provided the Court with Plaintiff’s
reply.14 Upon inquiry, Plaintiff’s counsel advised that she would like the email to be treated as

12

Fed. R. Civ. P. 26(a)(1)(A)(i) (bold added).

13

Fed. R. Civ. P. 26(c)(1)(C).

14

The Court’s August 15, 2014 Order directed Plaintiff to advise the Court within 2 days
after Defendant filed its response whether she intended to file a reply. In the interest of
efficiency, the Court considers the contents of the email message as Plaintiff’s reply and has
directed the Clerk’s Office to file the August 28, 2014 email as a reply in support of Plaintiff’s
Motion to Compel Supplemental Disclosures.
7

Plaintiff’s reply. Plaintiff contends in the email that Defendant’s August 26 Supplemental
Disclosures are still deficient.
II.

Motion to Compel Defendant’s Required Initial Disclosures (ECF No. 20)
The Court finds Plaintiff’s Motion to Compel Defendant’s Required Initial Disclosures

(ECF No. 20) is now moot in light of Defendant’s subsequent service of its Supplemental
Disclosures and the filing of Plaintiff’s Motion to Compel Defendant’s Supplemental
Disclosures (ECF No. 34). The Court will, however, consider Defendant’s lack of responsiveness
prior to the filing of the motion to compel initial disclosures, as well as its actions immediately
after and up to the filing of Plaintiff’s motion to compel supplemental disclosures on August 11,
2014, in its ruling herein.
III.

Motion to Compel Defendant’s Supplemental Disclosures (ECF No. 34)
Remaining pending before the Court is Plaintiff's Motion to Compel Defendant’s

Supplemental Disclosures (ECF No. 34). In her motion, Plaintiff argues that Defendant should
be compelled to provide the name, address, telephone number, and subject of the discoverable
information for each individual likely to have discoverable information Defendant may use to
support its claims and defenses, as required by Rule 26(a)(1)(A)(i). She also argues that
Defendant should be sanctioned because it failed to provide complete required initial disclosures
and ignored Plaintiff’s attempts to confer on the issue.
The Court has reviewed Defendant’s Response (ECF No. 42) and its August 26, 2014
Supplemental Disclosures (ECF No. 42-1) along with the August 28, 2014 email from Plaintiff’s
counsel serving as Plaintiff’s reply. In its Supplemental Disclosures, Defendant identifies—by
8

name—nine individuals likely to have discoverable information that it may use to support its
claims or defenses. Of the nine individuals identified, one is the Plaintiff, seven are current or
former employees of Defendant who may have information regarding “loss litigation efforts
relating to Plaintiff’s account,”15 and one is an assistant vice president who “may have
knowledge regarding information and business records maintained by Defendant pertaining to
the loan at issue.”
Defendant argues that its initial and supplemental disclosures comply with Rule
26(a)(1)(A)(i) and Rule 26(e). It points out that in its Initial Disclosures it identified the Plaintiff
and itself, through one or more corporate representatives and document custodians. Its Initial
Disclosures also referenced those individuals designated by Plaintiff in her initial disclosures. It
then supplemented its disclosures by providing additional information regarding the thirteen
individuals identified in Plaintiff’s initial disclosures as Defendant’s current or former
employees. Defendant argues that Rule 26(a)(1)(i) does not require it to identify any person who
might possibly have information that Plaintiff may use to support her claims or defenses, and
contains no requirement that Defendant provide contact information for individuals identified in
Plaintiff’s initial disclosures as having such information.
Plaintiff argues in the August 28, 2014 email reply that Defendant’s Supplemental
Disclosures are still deficient. Specifically, she claims that Defendant needs to either (1) identify
all of its corporate representatives and records custodians who may have information to support
its claims or defenses, or (2) affirmatively state that the named assistant vice president is the only

15

Def.’s Supp’l Disclosures (ECF No. 42-1). Given the allegations in this case, the Court
9

one. She also asserts that because Defendant included “all individuals designated by Plaintiff” in
its Initial Disclosures, Defendant is obligated under the Court’s August 15, 2014 Order to
provide the last known address for each of its former employees identified in Plaintiff’s initial
disclosures. Finally, Plaintiff argues that Defendant should be prohibited from identifying any
additional individuals who should have been discovered as part of Defendant’s initial
investigation unless it can provide good cause for its failure to identify them.
A.

Defendant’s Reference to Generic Categories or Descriptions of Witnesses in
its Initial Disclosures

Defendant has not provided any controlling or persuasive legal authority for its position
that identifying individuals generically, such as its “corporate representative(s)” or “records
custodian(s),” is sufficient to satisfy its initial disclosure obligations under Rule 26(a)(1)(A)(i).
During the August 15, 2014 Status Conference, the Court invited Defendant to provide authority
to support its position. However, the only authority cited in Defendant’s Response is a 2008
District of Kansas case, Dean v. New Werner Holding Co.16 Defendant argues that the plaintiff
in that case raised similar objections to a defendant’s initial disclosures in a motion to compel
seeking sanctions. The plaintiff complained that defendant’s initial disclosures were incomplete
because defendant had not identified any of its employees in those disclosures. The defendant
supplemented its Rule 26(a)(1) initial disclosures, stating that it had disclosed “all information
within its knowledge, or that it may use to support its claims or defenses at this time.” The court

construes Defendant’s references to “loss litigation” to instead mean loss mitigation.
16

No. 07-2534-JAR-GLR, 2008 U.S. Dist. LEXIS 49519 (D. Kan. June 26, 2008).
10

declined to enter an order “based upon nothing more than doubt, skepticism, speculation, and
sophisticated logic, to compel a party to disclose something that no one has shown to exist” and
found plaintiff’s request for an award of fees and expenses to be unwarranted.
The Court finds that the Dean case cited by Defendant does not support its contention
that using categorical descriptions such as “corporate representatives” or “records custodians”
sufficiently complies with Rule 26(a)(1)(A)(i). The defendant in the Dean case was not arguing
that listing an unnamed records custodian or corporate representative was sufficient. Rather the
defendant had identified four persons in its disclosures as likely to have discoverable
information: the plaintiff, his wife, and two police officers who responded to the scene of the
incident. The plaintiff argued that such minimal disclosures were insufficient because they did
not include any employees of the defendant or the company which designed, manufactured,
marketed and distributed the products at issue. The Court does not read the Dean opinion to
support Defendant’s position that categorically listing “records custodians” or “corporate
representatives” adequately satisfies its disclosure obligations under Rule 26(a)(1)(A)(i).
Two cases from other Districts have found similar categorical identification of witnesses
likely to have discoverable information to be insufficient initial disclosures. In Lyon v. Banks
Life and Casualty Co.,17 the defendant served its initial disclosures identifying the plaintiff and
the “[c]orporate representative(s) of [Defendant].” The court held that “[i]t is not a good faith
response to the obligation of a party under Rule 26(a)(1)(A)(i) to simply identify those
‘individuals’ as corporate representatives, with no reference to the subject areas of their

17

No. 09-5070-JLV, 2011 WL 124629, at *6 (D.S.D. Jan. 14, 2011).
11

testimony, and then to identify their generic address as the address of defense counsel.”18 The
Lyon court concluded that endorsement of such identification “would defeat the automatic
disclosure intent of [Rule 26(a)] and impair the ability of the other party to prepare appropriate
interrogatories to develop testimony of those potential witnesses.”19
Similarly, in Toney v. Hakala,20 the court granted the plaintiff’s motion to compel initial
Rule 26(a) disclosures for defendants who had listed witnesses such as “Custodian of Records,”
among others. It found the defendants’ initial disclosures to be partial disclosures that did not
provide the plaintiff with any names or contact information and thereby prevented the plaintiff
from conducting effective discovery.21
The Court agrees with the rationale of these cases finding initial disclosures generically
listing custodian of records or corporate representatives to be insufficient compliance with Rule
26(a)(1)(A)(i). The purpose of the 1993 amendments to Rule 26(a)(1) was to “accelerate the
exchange of basic information about the case and to eliminate the paper work involved in
requesting such information.”22 Defendant’s use of generic categories of unnamed individuals
could apply to many individuals within its company and does not advance the goal of
exchanging basic discoverable information about individuals likely to have discoverable

18

Id.

19

Id.

20

No. 4:10-CV-2056-JAR, 2012 WL 1554911, at *1 (E.D. Mo. Apr. 30, 2012).

21

Id.

22

Fed. R. Civ. P. 26(a) advisory committee’s note (1993 Am.).
12

information Defendant may use to support its claims or defenses. It also impedes the goal of
eliminating the need for serving and responding to separate written discovery requests to obtain
this information. Because Defendant’s initial disclosures failed to provide Plaintiff with “the
name and, if known, the address and telephone number”23 of individuals likely to have
discoverable information Defendant may use in defending this case, Plaintiff has been forced to
engage in lengthy, significant, and time consuming demands for this information and, ultimately,
motion practice to obtain the basic information contemplated under Rule 26(a)(1). Accordingly,
the Court finds that Defendant’s mere identification of individuals not by name but by a generic
label that could apply to a number of its employees, such as Defendant’s “corporate
representative” or “records custodian,” is not sufficient to satisfy its initial disclosure obligations
under Rule 26(a)(1)(A)(i).
The Court notes that the original petition in this case was filed August 2, 2013, and the
case removed to federal court September 9, 2013, well over a year ago. Thus, Defendant has
known or should have known of the allegations in this case and of the applicability of the Rule
26(a)(1) requirements for many months prior to the filing of Plaintiff’s motion to compel initial
disclosures in May 2014. Pursuant to Rule 26(a)(1)(E), “[a] party is not excused from making its
disclosures because it has not fully investigated the case . . . .” In this case, Defendant does not
argue it had insufficient time to investigate. In any event, the time line in this case indicates
otherwise. Indeed, even after Judge Waxse indicated that Defendant’s disclosures were
inadequate at the December 20, 2013 scheduling conference, Defendant persisted in its position

23

Fed. R. Civ. P. 26(a)(1)(A)(i).
13

of refusing to provide the name of any witnesses other than unidentified “corporate
representative(s)” and “records custodians” from the time of its initial disclosures, despite
multiple requests by Plaintiff, until ordered to do so by the Court in August 2014.
In its August 26, 2014 Supplemental Disclosures, Defendant provides the name of a
single employee—an “assistance vice president; Mortgage Resolution Associate”—who may
have knowledge regarding information and business records maintained by Defendant pertaining
to the loan at issue. Although Defendant names one corporate representative or records
custodian, Plaintiff points out that it continues to argue that its original reliance on a “corporate
representative” or “records custodian” disclosure is sufficient compliance with Rule 26(a)(1).
Due to this inconsistency, Plaintiff requests that Defendant be ordered to either identify all of its
corporate representatives and records custodians that may have information to support its claims
or defenses, or affirmatively state that the named assistant vice president is the only one.
Here, the Court will not order Defendant to make any further supplementation of its
disclosures with respect to other unnamed corporate representatives or records custodians, rather
the Court will prohibit Defendant from using any witness not already listed in either its
December 13, 2013 Initial Disclosures, May 22, 2014 supplemented disclosures, or August 26,
2014 Supplemental Disclosures. During the August 15, 2014 conference, the Court expressly
ordered Defendant, pursuant to Fed. R. Civ. P. 26(e)(1)(B), to supplement its disclosures by
August 26, 2014, with all witnesses likely to have discoverable information who may support
Defendant’s claims or defenses. It cautioned that a sanction available would be to exclude any
potential witnesses not listed. Accordingly, pursuant to the Court’s order, Defendant has made
14

its final supplementation of its initial disclosures and will be limited to the individuals named in
those disclosures. Under Fed. R. Civ. P. 37(c)(1), “[i]f 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.”
Defendant attempts to reserve the ability to later supplement its initial disclosures by
including the following paragraph in its Supplemental Disclosures:
[Defendant] reserves the right to supplement, amend, or modify these disclosures
as additional information is obtained through the course of discovery or
otherwise. As [Defendant] continues its investigation into this matter, [Defendant]
reserves its right to disclose additional individuals who are likely to have
discoverable information that [Defendant] may use to support its claims or
defenses, unless solely for impeachment or unless Plaintiff is already aware of
those individuals and/or the right to individuals have already been identified to
Plaintiff pursuant to other discovery (interrogatories, depositions, requests for
production of documents, etc.).24
The Court finds such attempt to reserve rights contravenes the express language of Rule 37(c)(1)
prohibiting a party from using a non-disclosed witness and will not allow it. The District Court’s
standard form scheduling order, and specifically Section 2.a. of the Scheduling Order (ECF No.
8) entered in this case, draws counsel’s attention to the duty to make timely supplemental
disclosures under Rule 26(e). Defendant was ordered by the Court to supplement its Rule
26(a)(1)(A) disclosures by August 26, 2014 and it did so. Defendant is therefore prohibited from
using any witness who has not already been identified in either its December 13, 2013 Initial
Disclosures, May 22, 2014 supplemented disclosures, or August 26, 2014 Supplemental

24

Def.’s Supp. Discl. (ECF No. 42-1).
15

Disclosures to supply evidence on a motion, at a hearing, or at trial, unless Defendant makes a
showing that its failure to disclose such witness was substantially justified or is harmless.
B.

Last Known Address and Telephone Number for Defendant’s Former
Employee Identified in Plaintiff’s Initial Disclosures

Plaintiff also claims that Defendant is obligated under the Court’s August 15, 2014 Order
to provide the last known address and telephone number for each of Defendant’s former
employees named in Plaintiff’s supplemental initial disclosures. Defendant states in its August
26, 2014 Supplemental Disclosures that it is without information regarding the “current contact
information” for the four former employees listed. Fed. R. Civ. P. 26(a)(1)(A)(i) does not
require Defendant to provide the last known address and telephone number of former employees
named in its initial disclosures, the Rule only requires address and telephone numbers to be
provided “if known.” Plaintiff specifically requested the last known contact information of
Defendant’s former employees identified in the initial disclosures at the August 15 status
conference, and the Court thereafter ordered Defendant to provide the last known address and
telephone number of its former employees named in its Supplemental Disclosures. Defendant’s
statement that it is without current contact information for these former employees does not
comply with the Court’s Order. To the extent that Defendant has a last known address and
telephone number for these four former employees, it shall provide this information to Plaintiff
within 14 days of the date of this Order. If Defendant does not have a last known address or
telephone number, it shall advise Plaintiff that it does not have such information within 14 days
of this Order.

16

IV.

Request for Reasonable Expenses Related to the Motion
Plaintiff also requests her reasonable expenses incurred by filing the motion to compel

supplemental disclosures. Under Fed. R. Civ. P. 37(a)(5)(A), if the disclosure is provided after
the motion is filed, “the court must, after giving an opportunity to be heard, require the party . . .
whose conduct necessitated the motion, . . . to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees.” In this case, the Court finds that Defendant did
not provide Plaintiff with the name and contact information of each individual likely to have
discoverable information that it may use to support its claims or defenses until after Plaintiff
filed her first motion to compel these disclosures. Therefore, under Rule 37, the Court is
required to order payment of Plaintiff’s reasonable expenses, including attorney’s fees, caused by
Defendant’s failure to disclose. Defendant was advised by Judge Waxse at the December 20,
2013 Scheduling Conference that its disclosures were inadequate. Over the next 5 months,
Plaintiff repeatedly emailed, called, and wrote letters in an attempt to get this information from
Defendant. Only after Plaintiff filed a motion to compel did Defendant supplement its initial
disclosures by providing information about its current and former employees who were listed in
Plaintiff’s own initial disclosures. Despite repeated demands from Plaintiff’s counsel, its clear
duty to supplement disclosures, and the filing of two motions to compel, Defendant staunchly
adhered to its refusal to identify any specific corporate representative, without any legal authority
for its position, until ordered to do so by the Court.
Because Plaintiff requested her reasonable expenses in her motion to compel, Defendant
has been given an opportunity to be heard on the issue of expenses. The Court will therefore
order Plaintiff’s counsel to file, on or before October 10, 2014, an affidavit itemizing the
17

reasonable expenses, including attorney’s fees, Plaintiff incurred in making the Motion to
Compel Defendant’s Supplemental Disclosures (ECF No. 34). Defendant shall have until
October 24, 2014, to file a response to the affidavit. The Court will then issue a second order,
specifying the amount and time of payment.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to Compel Defendant’s
Required Initial Disclosures (ECF No. 20) is moot by virtue of Defendant’s subsequent service
of its Supplemental Disclosures and the filing of Plaintiff’s subsequent Motion to Compel
Defendant’s Supplemental Disclosures.
IT IS FURTHER ORDERED THAT Plaintiff's Motion to Compel Defendant’s
Supplemental Disclosures (ECF No. 34) is GRANTED. Pursuant to Fed. R. Civ. P. 37(c)(1),
Defendant is hereby prohibited from using any witness who is not already listed in either its
December 13, 2013 Initial Disclosures, May 22, 2014 supplemented disclosures, or August 26,
2014 Supplemental Disclosures to supply evidence on a motion, at a hearing, or at trial, unless
Defendant makes a showing that its failure to disclose such witness was substantially justified or
is harmless. To the extent that Defendant has a last known address and telephone number for the
former employees listed in its Supplemental Disclosures, it shall provide this information to
Plaintiff within 14 days of the date of this Order or advise Plaintiff that it does not have such
information.
IT IS FURTHER ORDERED THAT on or before October 10, 2014, Plaintiff shall file
an affidavit itemizing the reasonable expenses, including attorneys’ fees, Plaintiff incurred in
making the Motion to Compel Defendant’s Supplemental Disclosures (ECF No. 34). Defendant
18

shall have until October 24, 2014, to file a response to the affidavit. The Court will then issue a
second order, specifying the amount and time of payment
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 19th day of September 2014.

s/ Teresa J. James
Teresa J. James
United States Magistrate Judge

19