Esparza v. Baker
Filing
112
MEMORANDUM AND ORDER denying 92 Motion to Strike; denying 95 Motion to Quash. See Order for details. Signed by District Judge J. Thomas Marten on 7/9/2019. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEPHANIE L. ESPARZA,
Plaintiff,
v.
Case No. 17-1163-JTM-KGG
REGENT INSURANCE COMPANY,
Intervenor.
MEMORANDUM AND ORDER
This matter is before the court on two motions filed by Intervenor Regent
Insurance Company (Regent) pertaining to certain witness and exhibit disclosures: (1) a
motion to strike witness Vanessa Jaques and Exhibits I, J, K, and N from Esparza’s Rule
26(a)(3) Witness and Exhibit List (Dkt. 92); and (2) a motion to quash Esparza’s trial
subpoena to Vanessa Jaques (Dkt. 95). Regent contends that Esparza should be barred
from presenting either the witness or aforementioned exhibits because she failed to
identify them as such in her Rule 26(a)(1) initial disclosures or a timely supplement to
those disclosures. Esparza argues that the identity of the witness and the exhibits
identified by Regent were not available at the time of the initial disclosures, and that no
supplement was required under Rule 26(e) because Regent was made aware of the
relevant information during the course of discovery. After its review of the briefs and
disclosures in this matter the court concludes that there was no violation of Rule 26 that
would implicate sanctions under Rule 37, and that even if Esparza’s disclosures had
violated Rule 26 the failure to disclose was harmless.
A.
Legal Standard.
In this case, the court entered a revised scheduling order after ruling on the parties’
summary judgment motions. The pertinent portion of that order acknowledged that the
parties had already exchanged initial disclosures as required by Fed.R.Civ.P. 26(a)(1), but
directed that “[s]upplementations of those disclosures under Fed.R.Civ.P. 26(e) must be
served at such time and under such circumstances as required by that rule.” (emphasis
added). The Scheduling Order then advised “[s]hould anything be included in the final
[pretrial] 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).” (emphasis added).
Rule 26(a)(1)(E) requires that a party “make its initial disclosures based on the
information then reasonably available to it,” but must supplement the 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.” “If 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.” Fed. R. Civ. P. 37(c)(1).
“A district court has discretion to decide whether a Rule 26 violation is justified or
harmless and, when doing so, should consider the following factors: ‘(1) the prejudice or
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surprise to the party against whom the testimony is offered; (2) the ability of the party to
cure the prejudice; (3) the extent to which introducing such testimony would disrupt the
trial; and (4) the moving party’s bad faith or willfulness.’” Little v. Budd Co., 339 F.Supp.3d
1202, 1207 (D. Kan. 2018) (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir.
2002)).
B.
Analysis.
1.
Disclosure of Vanessa P. Jaques as a Trial Witness
It is true that Esparza failed to disclose Jaques as a witness in her Rule 26(a)(1)
initial disclosures. The court finds that irrelevant, as Esparza learned of Jaques’ role in
the case a year after her initial disclosures were served. It appears that Esparza first
learned of Jaques when she received an email from Jaques on September 17, 2018,
informing her that K.C. Bell (her former employer) could not accommodate her at any
position due to Esparza’s final medical restrictions. Esparza’s Second Supplemental
Response to Regent’s First Request for Production was served on Regent’s counsel two
days later, on September 19, 2018, identifying “email received by Plaintiff from K.C. Bell’s
Director of Human Resources, Vanessa Jaques on September 17, 2018” as responsive to
a request for written material containing information pertaining to the incident alleged
and the alleged damages or injuries. (Dkt. 97-2). Regent was at least aware of Jaques’
identity and relevance to the case, then, in mid-September 2018.
Regent nevertheless contends that Esparza was still obligated to file a Rule 26(e)
supplement listing Esparza specifically as a “trial witness.” Regent’s insistence that
Esparza failed to identify Jaques as a trial witness prior to her Rule 26(a)(3) pretrial
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disclosures reads requirements into the rules that do not exist. Rule 26(a)(1) states that a
party shall provide “the name … address and telephone number of each individual likely
to have discoverable information … the disclosing party may use to support its claims or
defenses ….” A party is then required to supplement under Rule 26(e)(1)(A) only if “the
additional or corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.” (emphasis added). Neither of these rules require
a disclosing party to distinguish among those individuals “likely to have discoverable
information” and those individuals who the party intends to call as trial witnesses.
Esparza disclosed Jaques’ identity and pertinent contact information promptly and in
writing, which is all that Rules 26(a) and 26(e) required her to do. See Pina v. Children’s
Place, 740 F.3d 785, 793 (1st Cir. 2014) (finding disclosure of a witness’s identity and role
in a verified position statement to the Massachusetts Commission against Discrimination
sufficient to meet Rule 26(e)’s exception to the supplementation rule).
In contrast, Rule 26(a)(3)(A) provides that in addition to the disclosures required by
Rules 26(a)(1) and (2),
a party must provide to the other parties and promptly file the following
information about the evidence that it may present at trial other than solely
for impeachment:
(i) the name and, if not previously provided, the address and
telephone number of each witness – separately identifying those the party
expects to present and those it may call if the need arises;
…
(iii) an identification of each document or other exhibit …
separately identifying those items the party expects to offer and those it
may offer if the need arises.
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Fed.R.Civ.P. 26(a)(3)(A). Those disclosures must be made at least 30 days prior to trial.
Fed.R.Civ.P. 26(a)(3)(B). Regent does not dispute that Esparza timely filed the disclosures
required by Rule 26(a)(3) on June 17, 2019, and that Jaques was identified as a trial witness
in those disclosures. (Dkt. 89, p.1). Esparza’s disclosure of Jaques’ identity, in writing,
during discovery combined with the timely pretrial disclosure fully complied with the
disclosure requirements of Rule 26. There is no basis, then, to strike Jaques as a witness.
Even if Esparza’s failure to declare Jaques a “trial witness” until the pretrial
disclosures was a technical violation of Rule 26(e), however, the court finds that violation
would be harmless. Regent repeatedly emphasizes that it was never particularly
concerned about the nature of Jaques’ knowledge or testimony because she played such
a “minor” role in the case. Those statements are difficult to square with Regent’s later
claim that Jaques’ identity as a “trial witness” was “critical to Regent’s understanding of
the facts of the case, the nature and extent of the damages claimed, to determine the
existence of, and locate, other fact and rebuttal witnesses, to evaluate the need to retain
expert witnesses, and to formulate its defense to Plaintiff’s claims.” (Dkt. 96, p. 4). Regent
does not explain how Esparza’s choice to list Jaques as a witness who will testify at trial
(presumably to establish foundation for the email concerning K.C. Bell’s inability to
accommodate Esparza’s medical restrictions) transforms Jaques’ role from minor to
critical.
Jaques was an employee of Regent’s insured, K.C. Bell. Esparza disclosed at the
outset of the case that members of K.C. Bell’s management would be relevant witnesses.
Regent has long been aware that Esparza’s ability to find employment and the nature of
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that employment would be an issue in the case. Regent’s own expert acknowledges the
same fact contained in Jaques’ email – namely that Esparza will not be able to return to
her former employment in the fast food industry given her limitations on mobility, range
of motion, and endurance. (Dkt. 83-5). Even if Regent did not know of Jaques’ identity,
specifically, it has been fully apprised of the nature and essence of Esparza’s damage
claim and has had a full and fair opportunity to develop its defense to those claims.
The court finds no prejudice or surprise that warrants striking Jaques.
Acknowledging Regent’s admission that Jaques plays a “minor role” in this factual
scenario, there is very little likelihood that allowing her testimony would disrupt the
process of trial. Finally, the court finds no bad faith or willfulness in Esparza’s conduct
given her prompt disclosure of Jaques’ email and the timely filing of her final witness and
exhibit list. Under the circumstances, any violation of Rule 26 pertaining to Jaques’
disclosure was harmless.
2.
Disclosure of Exhibits I, J, K, and N
Regent seeks to exclude the following exhibits on the ground that Esparza failed
to include them with either her Rule 26(a)(1) initial disclosures or in discovery, identified
as they are listed in Esparza’s final witness and exhibit list: (i) Esparza’s current pay stub;
(j) job search listings post-Esparza’s release at maximum medical improvement; (k) motor
vehicle accident photos; and (n) the email to Esparza from Vanessa Jaques. As to the email
from Jaques, Regent acknowledges that Esparza did provide that email in discovery but
contends that Esparza was still obligated to disclose the email as a “trial exhibit” in a Rule
26(e) supplemental disclosure. That position is unavailing for the reasons discussed
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above with respect to Esparza’s disclosure of Jaques. Neither Rule 26(a)(1) nor Rule 26(e)
required Esparza to designate the email specifically as a “trial exhibit” during the
discovery process, and the email was properly and timely identified as a trial exhibit in
Esparza’s Rule 26(a)(3) disclosures.
As to Esparza’s pay stub and job search results, those documents could not have
been included with the initial Rule 26(a)(1) disclosures because they did not exist then.
They were provided to Regent on December 12, 2018, two months prior to the close of
discovery. The documents were enclosed with the report of Esparza’s damages expert,
Gary Baker, along with a letter referencing Esparza’s “exhaustive job search over a thirty
(30) day period” and “the actual wage payment statement from her employment which
reflects $10.50 per hour at a current fifteen (15) hours per week.” (Dkt. 97-3).
In its reply brief Regent admits that it did receive the pay stub and job search
results but contends that because they were included with Esparza’s letter they were
mistakenly filed as correspondence, rather than potential exhibits. (Dkt. 104, p. 3-4). The
court finds that implausible, as it assumes Regent would have made a careful review of
the disclosure prior to taking Gary Baker’s deposition. Even so, Regent’s filing mistake
does not equate to a Rule 26 violation on the part of Esparza. The pay stub and job search
results were disclosed in writing. Regent acknowledges its receipt of those documents
prior to the close of discovery. Esparza then timely listed the pay stub and job search
results in her pretrial disclosures. There is no basis to strike either of those exhibits under
Rule 37.
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Finally, there is no basis to strike the motor vehicle accident photos. Regent was
well aware from its initial intervention in the case that Esparza’s claims involved a motor
vehicle accident. Its First Requests for Production requested “any and all photographs,
videos, movies, or slides of the scene of the subject incidents and of any injuries to
Plaintiff.” (Dkt. 97-4). Esparza responded “[t]here are photos available to Regent of the
accident scene contained in Motor Vehicle Accident Report filed by the Wichita Police
Department in Case No. 16 C 042761.” Despite that early identification, it appears that
neither party bothered to obtain the accident scene photos until late June, 2019, when
Esparza received a copy of them from the Wichita Police Department. Upon receipt,
Esparza’s counsel emailed Regent’s counsel and offered to send a copy in the mail if
Regent had not yet obtained them. When Regent acknowledged it did not have them,
Esparza’s counsel provided them within an hour. (Dkt. 97-5).
While perhaps both parties could have been more diligent in their efforts to obtain
the photos, Regent cannot claim that Esparza’s conduct rendered it unaware of the
existence or contents of those photos or otherwise prevented its access to those photos.
Further, Esparza promptly provided Regent with the photos upon learning that Regent
did not have them. Under these circumstances the court finds that any violation of Rule
26 resulting from distribution of the photos after the discovery cut-off date was harmless,
and no sanctions are warranted by Rule 37.
C.
Conclusion.
The court is mindful that the general rationale and purposes of Rule 37 sanctions
are to (1) deter future litigation abuse; (2) punish present litigation abuse; (3) compensate
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victims of litigation abuse; and (4) facilitate case management. Burton v. R.J. Reynolds
Tobacco Co., 203 F.R.D. 636, 640 (D. Kan. 2001) (citing White v. General Motors Corp., 908
F.2d 675, 683 (10th Cir. 1990)). None of those factors are present here. The court’s review
of the disclosures and discovery exchanges between the parties shows no bad faith on
Esparza’s part and no violations of Rule 26 that would warrant the impositions of
sanctions under Rule 37. Further, the court finds that Esparza did not violate this court’s
Scheduling Order. The Scheduling Order contemplated that the duty to supplement
initial disclosures was governed by Rule 26(e), which provides an exception to the duty
to file a supplemental disclosure when the new information has been provided in writing
through the discovery process.
Regent’s Rule 37 Motion to Strike (Dkt. 92) and Motion to Quash the trial subpoena
to Vanessa Jaques (Dkt. 95) are therefore DENIED.
IT IS SO ORDERED.
Dated this 9th day of July, 2019.
/s/J. Thomas Marten
THE HONORABLE J. THOMAS MARTEN
UNITED STATES DISTRICT COURT
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