HAVERLY-JOHNDRO v. BATH & BODY WORKS LLC

Filing 45

ORDER ON DEFENDANT'S MOTION TO EXCLUDE DOCUMENTS NOT TIMELY PRODUCED BY PLAINTIFF re: granting 36 Motion to Exclude By JUDGE JON D. LEVY. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PATRICIA HAVERLY-JOHNDRO,
Plaintiff,
v.
BATH & BODY WORKS, LLC,
Defendant.

)
)
)
)
) Docket No. 1:13-cv-00108-JDL
)
)
)
)

ORDER ON DEFENDANT’S MOTION TO EXCLUDE DOCUMENTS NOT
TIMELY PRODUCED BY PLAINTIFF
Pending before the Court is Bath and Body Works, LLC (“BBW”)’s Motion to
Exclude Documents Not Timely Produced by Plaintiff (ECF No. 36). After careful
consideration, I GRANT the motion.
I. BACKGROUND
The central facts cited by BBW in support of its motion are not in dispute. On
May 15, 2013, BBW served its first set of written discovery that included a request
for the production of every “diary, journal, calendar, day planner, organizer,
notebook, recording, or any other documentation, including electronic documents
and emails” relating to Plaintiff Patricia Haverly-Johndro (“Haverly-Johndro”)’s
employment with BBW and her allegations in this proceeding. Exhibit 3 to Def.’s
Mot. 8, ECF No. 36-4.

After BBW agreed to extensions for Haverly-Johndro’s

response, she served her response on July 18, 2013, producing 141 pages of
responsive documents, including some typed notes relating to her employment. At
1

her October 15, 2013 deposition, Haverly-Johndro testified that she had “retain[ed]
a few notes” that she prepared during her employment with BBW in addition to
those previously produced, and she represented that she would provide them.
Exhibit 6 to Def.’s Mot. 2, ECF No. 36-7. She also testified that copies of any BBW
documents in her possession had been provided to her attorney. Id. at 6.
On October 17, 2013, BBW verbally requested that Haverly-Johndro
supplement her discovery responses. Def.’s Mot. to Exclude 4, ECF No. 36. This
was followed by a written request on October 22, 2013. Id. Haverly-Johndro’s
counsel responded that the documents would be provided “next week,” but no
additional documents were produced. Exhibit 8 to Def.’s Mot. 1, ECF No. 36-9.
After the discovery period formally closed on November 14, 2013, BBW requested
the documents again in a written letter dated December 19, 2013. Exhibit 9 to
Def.’s Mot. 3, ECF No. 36-10. No additional documents were produced.
BBW filed its summary judgment motion on January 24, 2014. On March 17,
2014, over four months after discovery closed and the same day BBW was scheduled
to file its Reply in Support of its Motion for Summary Judgment, BBW’s counsel
received from Haverly-Johndro’s counsel a letter that enclosed a compact disk
containing 385 previously unproduced documents. The CD included hundreds of
pages of handwritten notes that Haverly-Johndro prepared while she was employed
by BBW, as well as BBW documents, Haverly-Johndro’s personal text messages
related to BBW, and copies of emails Haverly-Johndro received through her BBW
email account.

2

The March 12, 2014 letter accompanying the CD stated that the documents
were discovered by counsel while preparing Haverly-Johndro’s opposition to BBW’s
motion for summary judgment. Although that opposition was filed on February 21,
2014, the CD was not mailed to BBW until three weeks later on March 12, 2013.
II. DISCUSSION
In her memorandum of law in opposition to BBW’s motion, Haverly-Johndro
offered a limited explanation for her late production of the documents.

She

explained in a footnote that she “accepts responsibility for the late production of the
documents; however there was no ulterior motive or ‘cavalier explanation’ for the
late production.” Pl.’s Resp. 1, ECF No. 37. She then explained that her production
of discovery documents, deposition, and the preparation of her opposition to BBW’s
motion for summary judgment were separately handled by three different
attorneys, “but avers that these documents were produced to counsel for Defendant
within a few days of receipt.” Id. In opposing BBW’s motion, Haverly-Johndro also
asserts that the motion is premature and should await trial for resolution, and that
BBW has not shown that it was prejudiced by her late production of the documents.
Id. at 2–3.
BBW’s motion is not premature. If the requested relief is denied, discovery
will need to be reopened so that BBW will have the opportunity to re-depose
Haverly-Johndro. Absent the resolution of the motion now, the parties will have to
prepare for trial without knowing whether the Court will ultimately exclude from
evidence nearly 400 potential exhibits based on their untimely production.

3

In addition, and contrary to Haverly-Johndro’s additional argument, BBW
was prejudiced and judicial resources would be compromised by the late service of
the documents.

None of the documents were available to BBW when it took

Haverly-Johndro’s deposition, and then prepared its motion and the summary
judgment record. Further, if the documents are not excluded as trial exhibits and
discovery is reopened, the trial will be delayed and the expense of this litigation will
be increased.
Fed. R. Civ. P. 37(c)(1) provides that “[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.” As the First
Circuit has recognized, “[t]he baseline rule is that the required sanction in the
ordinary case is mandatory preclusion.”

Santiago-Diaz v. Laboratorio Clinico y de

Referencia del este, 456 F.3d 272, 276 (1st Cir. 2006).

Several factors apply in

determining the sanction, including “the history of the litigation, the proponent’s
need for the challenged evidence, the justification (if any) for the late disclosure,
and the opponent’s ability to overcome its adverse effects.” Id. at 276-77.
The four Santiago-Diaz factors support the exclusion of the documents in this
case. First, the history of the litigation reflects BBW’s repeated attempts to remind
Haverly-Johndro of her obligation to produce the documents that she failed to
produce in her discovery responses, but acknowledged in her deposition testimony.
Second, Haverly-Johndro’s need for the documents is negligible as indicated by her

4

statement in her memorandum of law that “there are very few, if any, documents
contained within that production that Plaintiff intends to use as a trial exhibit (nor
would many of them be admissible in any event)[.]” Pl.’s Resp. at 2. Third, the only
justification offered for the late disclosure is that Haverly-Johndro failed to be
attentive to her discovery obligations pursuant to the Federal Rules of Civil
Procedure. Finally, for reasons already explained, BBW will suffer adverse effects if
the documents are not excluded.
For the foregoing reasons, BBW’s Motion to Exclude Documents is
GRANTED.

Haverly-Johndro is prohibited from relying on or referring to the

documents in further proceedings in this case.
SO ORDERED.
DATED THIS 15th DAY OF JULY, 2014
__/s/ Jon D. Levy_____________________
JON D. LEVY
UNITED STATES DISTRICT JUDGE

5