Walker et al v. Target Corporation
ORDER granting in part and denying in part 102 Motion to Strike. Signed by District Judge Keith Starrett on 6/7/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
DR. DEBRA L. WALKER, et al.
CIVIL ACTION NO. 2:16-CV-42-KS-MTP
On May 17, 2017, Plaintiffs filed a Motion to Strike  Defendant’s Motion for
Summary Judgment  and Answer. Therein, Plaintiffs argue that Defendant
intentionally failed to disclose the address and phone number of a witness identified
in its initial disclosures – Nicholas Field, a former Target employee. Plaintiffs also
argue that Defendant intentionally failed to disclose Field’s affidavit taken in January
2017, which was attached as an exhibit to Defendant’s Motion for Summary Judgment
. For the reasons below, the Court grants in part and denies in part Plaintiffs’
Motion to Strike .
In its initial disclosures of June 2016, Defendant identified Nicholas Field as a
former employee likely to have discoverable information. See Exhibit 9 to Motion to
Strike at 1, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 31, 2017),
ECF No. 102-9. On July 11, 2016, Defendant’s counsel provided Field’s last known
address and telephone number to Plaintiffs’ counsel. See Exhibit A to Response at 22,
Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 31, 2017), ECF No.
113-1. The address was incomplete insofar as it was for a trailer park but did not
include Field’s lot number. The phone number was no longer in service.
Using an online people-finder service, Plaintiffs’ counsel learned that Field had
lived at Lot 13 of the trailer park. See Exhibit 1 to Reply at 1, Walker v. Target Corp.,
No. 2:16-CV-42-KS-MTP (S.D. Miss. June 5, 2017), ECF No. 115-1. Plaintiffs’ counsel
knew this as early as August 2016, as demonstrated by his correspondence to Field. See
Exhibit 4 to Motion at 1, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss.
May 17, 2017), ECF No. 102-4. Defendants’ counsel represented in briefing that Field’s
trailer was relocated to Lot 10 several years ago. See Memorandum at 3 n. 2, Walker
v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 31, 2017), ECF No. 114. But
Field lived at the trailer park disclosed by Defendant from July 2013 through March
2017. Exhibit B to Response at 1, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP
(S.D. Miss. May 31, 2017), ECF No. 113-2.
At some point between July 2016 and January 2017 – “several months into the
discovery process” – Defendant’s counsel located Field on Facebook and obtained his
lot number and current phone number. See Exhibit A [113-1], at 2, 6. But Defendant
did not timely supplement its disclosures to provide Field’s lot number or current
phone number. The Court can not determine from the record whether Defendant
provided the lot number prior to filing its briefs on the subject motion, and Defendant
did not disclose the phone number until May 17, 2017. See Id. at 5-6. Finally,
Defendant never disclosed an affidavit it obtained from Field on January 26, 2017, or
listed it in a privilege log. See Exhibit E to Motion for Summary Judgment, Walker v.
Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. April 20, 2017), ECF No. 78-5.
Rule 26 provides that “a party must, without awaiting a discovery request,
provide to the other parties . . . the name and, if known, the address and telephone
number 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 . . . .” FED. R. CIV. P. 26(a)(1)(A)(i). The disclosing party must generally
make these initial disclosures “at or within 14 days after the parties’ Rule 26(f)
conference . . . .” FED. R. CIV. P. 26(a)(1)(C); see also L.U.Civ.R. 26(a)(1)(A). “A party
must make its initial disclosures based on the information then reasonably available
to it.” FED. R. CIV. P. 26(a)(1)(E).
Rule 34 permits a party to serve requests for the production of documents. FED.
R. CIV. P. 34(a)(1). “The party to whom the request is directed must respond in writing
within 30 days after being served . . . .” FED. R. CIV. P. 34(b)(2)(A). The responding
party may object to requests for production, FED. R. CIV. P. 34(b)(2)(C), but “[a] party
withholding information claimed privileged or otherwise protected must submit a
privilege log that contains” certain enumerated information about the withheld
document. L.U.Civ.R. 26(e). “To withhold materials without such notices subjects the
withholding party to sanctions under Fed. R. Civ. P. 37 . . . .” Id.
“A party who has made a disclosure . . . or who has responded to a . . . request
for production . . . must supplement or correct its disclosure or response . . . 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 corrective information has not otherwise
been made known to the other parties during the discovery process or in writing . . .
.” FED. R. CIV. 26(e)(1). Local Rule 26 provides that a party must supplement “in no
event later than the discovery deadline established by the case management order.”
First, there is no legitimate dispute as to Defendant’s failure to disclose Field’s
complete address and current phone number. Accordingly, Defendant violated Rule
26(e) by failing to supplement its initial disclosures with Field’s lot number and
current phone number.
Defendant does not dispute that it failed to produce Field’s affidavit in response
to Plaintiffs’ request for production of any written statements. Rather, Defendant
contends that it was non-discoverable work product created by counsel in anticipation
of trial. See FED. R. CIV. P. 26(b)(3)(A). The Court disagrees, for the same reasons
provided in Walker v. George Koch Sons, Inc., No. 2:07-CV-274-KS-MTP, 2008 U.S.
Dist. LEXIS 81919, at *17-*19 (S.D. Miss. Sept. 18, 2008) (citing numerous
authorities). Field’s affidavit merely provides facts within his personal knowledge, and
it does not reveal Defendant’s counsel’s “mental impressions or legal strategy.” Id. at
*17. To the extent Defendant cited contrary authorities, the undersigned judge
respectfully disagrees with them. Therefore, Defendant violated Rule 26(e) by failing
to supplement its responses to Plaintiffs’ requests for production, which specifically
requested any “written or recorded statements” relevant to this case. See Exhibit 10
to Motion to Strike, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May
17, 2017), ECF No. 102-10.
Even if the affidavit were work product, Defendant was required to submit a
privilege log” with certain information about the withheld document. L.U.Civ.R. 26(e).
Defendant did not do so, and “[t]o withhold materials without such notices subjects the
withholding party to sanctions under Fed. R. Civ. P. 37 . . . .” Id.
Rule 37 Analysis
Having found that Defendant violated its disclosure obligations by failing to
disclose Field’s complete address, his current phone number, and his affidavit, the
Court must determine an appropriate sanction. “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).
“In addition to or instead of this sanction, the court . . . may order payment of the
reasonable expenses, including attorneys fees, caused by the failure” or “impose other
appropriate sanctions . . . .” Id.
When deciding whether to exclude evidence for a party’s failure to disclose it
during discovery, the Court considers the following factors: “(1) the explanation for the
failure to identify the witness; (2) the importance of the testimony; (3) potential
prejudice in allowing the testimony; and (4) the availability of a continuance to cure
such prejudice.” Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th
Cir. 2004) (citing Geiserman v. McDonald, 893 F.2d 787, 790 (5th Cir. 1990)). The
Court “should impose only that sanction which is the least severe way to effect
compliance with the court’s discovery orders,” United States v. Garza, 448 F.3d 294,
300 (5th Cir. 2006), and it has “broad discretion” in formulating such sanctions. Barrett
v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996); see also FED. R. CIV. P.
First, the Court is not impressed by Defendant’s explanations for its failures to
comply with the discovery rules. Defendant argues that Plaintiffs’ counsel could have
found Field’s lot number and current phone number just as easily as its counsel did,
noting that Plaintiffs’ counsel’s office is less than ten miles from the trailer park where
Field lived. The Court agrees that Plaintiffs’ counsel could have obtained Field’s
contact information as readily as Defendant’s counsel. And while that issue may be
relevant to determining the prejudice created by the nondisclosure, it is wholly
irrelevant to Defendant’s obligation to supplement. Moreover, Defendant’s alleged
belief that the affidavit constituted non-discoverable work product was wrong, as
explained above. Even if the affidavit were work product, Defendant provided no
explanation for its failure to list it on the privilege log. The first factor weighs in favor
The second factor weighs against exclusion, in that the testimony is relatively
important. Indeed, Plaintiffs described Field as a “vital witness” and “the only Target
employee who was present” when Mrs. Walker fell. See Memorandum at 1, Walker v.
Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 17, 2017), ECF No. 103. Field
stated that he “was the first Target team member to respond to the scene of the fall.”
Exhibit E to Motion for Summary Judgment at 2, Walker v. Target Corp., No. 2:16-CV42-KS-MTP (S.D. Miss. Apr. 20, 2017), ECF No. 78-5. He “observed the location where
Ms. Walker fell,” and he claims to have “walked down” the aisle “within ten (10)
minutes of Ms. Walker’s fall . . . .” Id. at 2-3. This is important evidence, relevant to
and probative of Plaintiffs’ claims.
Next, the Court believes that Defendant’s failure to disclose has created some
prejudice to Plaintiffs, but that prejudice is sharply mitigated by two factors. First,
Plaintiffs’ counsel was just as capable of finding Field’s contact information as
Defendant’s counsel was. Indeed, Plaintiffs’ counsel had the address of the trailer park
in which Field lived through March 2017. Moreover, Field was a former employee of
Defendant and, therefore, not within Defendant’s control.
Second, Plaintiffs’ counsel became aware of the discovery violations on April 20,
2017, when Defendant filed its Motion for Summary Judgment  with the Field
affidavit attached as an exhibit [78-5]. If Plaintiffs had immediately brought the matter
to the Court’s attention, there would have been more time to craft a remedy. In fact,
the Magistrate Judge held a telephonic discovery conference with the attorneys of
record on April 24, 2017, and Plaintiffs’ counsel did not raise the issue. Instead, on
April 26, 2017, Plaintiffs’ counsel filed a Motion  seeking a one month extension of
the briefing deadlines on Defendant’s dispositive motions. Having no notice of the
simmering discovery dispute, the Court granted the extension in part on April 27,
2017. Finally, on May 17, 2017 – almost a month after becoming aware of the discovery
violations – Plaintiffs filed their Motion to Strike  on the same day as their
responses to Defendant’s dispositive motions.
This Court’s Local Rules explicitly provide: “The failure to take immediate action
and seek court intervention when a known fact disclosure violation . . . occurs will be
considered by the court in determining the appropriate sanctions to be imposed
regarding a subsequent motion filed under Fed. R. Civ. P. 37(c).” L.U.Civ.R. 26(a)(3).
Therefore, while the Court concludes that it would prejudice Plaintiffs to consider
Field’s affidavit or permit his testimony at trial, that prejudice is mitigated by
Plaintiffs’ counsel’s failure to raise the issue in a timely manner. Indeed, Plaintiffs’
untimely filing of the Motion to Strike  casts a substantially different light on
their motion  for an extension of time to respond to Defendant’s dispositive
Finally, there is time to cure whatever prejudice was created by Defendant’s
discovery violations. The pretrial conference in this matter is currently scheduled for
July 20, 2017. The Court will not continue the pretrial conference, but that leaves over
a month for Plaintiffs to depose Field and supplement their responses to Defendant’s
motions, and for the Court to rule on the motions before the pretrial conference.
For these reasons, the Court grants in part and denies in part Plaintiffs’
Motion to Strike . The Court grants the motion insofar as Plaintiffs seek a ruling
that Defendant violated the discovery rules by failing to supplement its initial
disclosures and responses to Plaintiffs requests for production. The Court denies the
motion in all other respects. More specifically, it declines to exclude Field’s affidavit or
his potential testimony at trial, and it declines to strike Defendant’s Motion for
Summary Judgment  or answer.
Instead, Plaintiffs may depose Field outside the discovery period. The deposition
must occur within fourteen days of the entry of this order – no later than June 21,
2017. After the deposition has been conducted, Plaintiffs have one week to file a
supplemental response to Defendant’s Motion for Summary Judgment  or any other
pending motion to which Field’s testimony is relevant. Defendant will not be permitted
to file supplemental replies. Because Plaintiffs would have incurred the cost of
deposing Field if the contact information and affidavit had been timely disclosed, they
will bear the normal cost of deposition and transcripts. However, if there is any
additional cost for expediting the transcript, Defendant must pay it.
Defendant must also pay a reasonable and fair amount of the fees Plaintiffs
incurred for the Motion to Strike and its supporting briefs, to be determined by the
Court after Plaintiffs submit a fee request. Plaintiffs shall submit the fee request,
supporting brief, and documentation before June 21, 2017. Defendant shall respond on
or before June 28, 2017. Plaintiffs may reply on or before July 3, 2017.
Finally, if Plaintiffs intend to depose Field, they must notify the Court of their
intention to do so on or before Monday, June 12, 2017. If Plaintiffs do not wish to
depose Field pursuant to the terms provided above, the Court will address the pending
dispositive motions. If Plaintiffs do intend to depose Field, the Court will wait for
Plaintiffs’ supplemental briefing.
The Court will not grant an extension of any deadline imposed in this Order.
SO ORDERED AND ADJUDGED, on this, the __7th__ day of June, 2017.
UNITED STATES DISTRICT JUDGE
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