Walker et al v. Target Corporation

Filing 129

ORDER denying 77 Motion to Strike Plaintiff Debra Walker's Supplemental Answers to its First Set of Interrogatories. Signed by District Judge Keith Starrett on 6/13/2017 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
DR. DEBRA L. WALKER, et al.
V.

PLAINTIFFS
CIVIL ACTION NO. 2:16-CV-42-KS-MTP

TARGET CORPORATION

DEFENDANT
ORDER

On April 20, 2017, Defendant filed a Motion to Strike [77] Plaintiff Debra
Walker’s Supplemental Answers to its First Set of Interrogatories [77-1].1 Plaintiff first
served the supplemental interrogatory responses on December 20, 2016, but she did
not serve a signed copy until March 15, 2017 – the discovery deadline. Defendant
argues that it had no duty to act on an unsigned discovery response, and that the Court
must strike the supplemental interrogatory answers pursuant to Rule 26(g)(2), which
provides that “parties have no duty to act on an unsigned disclosure, response, or
objection until it is signed, and the court must strike it unless a signature is promptly
supplied after the omission is called to the attorney’s or party’s attention.” FED. R. CIV.
P. 26(g)(2).
Although Plaintiff did not sign her supplemental interrogatory responses, her
attorney did. Rule 26(g) only requires that “at least one attorney of record” sign
discovery responses, unless the responding party is unrepresented. FED. R. CIV. P.
26(g)(1). Rule 33 requires that “[t]he person who makes the [interrogatory] answers

1

Docket No. 77-1 is a redacted copy of Plaintiffs’ supplemental interrogatory
responses. Docket No. 105-1 includes an unredacted copy.

must sign them . . . ,” FED. R. CIV. P. 33(b)(5), but it does not impose a mandatory
sanction of striking the unsigned response. Contrast Fed. R. Civ. P. 26(g)(2), with FED.
R. CIV. P. 33(b)(5). Rather, violations of Rule 33 are subject to sanctions under Rule 37.
See FED. R. CIV. P. 33 advisory committee’s note; FED. R. CIV. P. 37(a); cf. Geiserman
v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990). Defendant never filed a motion to
compel pursuant to Rule 37(a), and it has not argued that sanctions are appropriate
under Rule 37(c).2
Regardless, Plaintiff eventually served signed responses on March 15, 2017, and
Defendant has not represented that the signed responses differed materially from the
unsigned ones. Therefore, while Plaintiff may have been lackadaisical in her obligation
to provide signed interrogatory responses, Defendant has not articulated any prejudice
that was created by the delay. Defendant had the same information available to it for
three months before it received the signed responses. Although Rule 26(g)(2) provides
that the Court “must” strike unsigned discovery responses, the Fifth Circuit has held
that a district court did not abuse its discretion in denying a motion to strike a
technically deficient discovery response that created no prejudice to the opposing party.
See Waltner v. Aurora Loan Servs., LLC, 551 F. App’x 741, 747 (5th Cir. 2013) (citing
Coco v. United States, 569 F.2d 367, 372 (5th Cir. 1978)).3

2

It is unlikely the Court would impose sanctions under Rule 37 because, as
explained below, Plaintiff’s delay in providing signed responses did not prejudice
Defendant.
3

See also Fos v. Walmart Stores East, LP, No. 3:12-CV-735-LG-JMR, 2013
U.S. Dist. LEXIS 191329, at *4 n. 1 (S.D. Miss. Nov. 14, 2013) (“Unless a signature
2

Finally, the Local Rules provide: “A party must file a discovery motion
sufficiently in advance of the discovery deadline to allow response to the motion, ruling
by the court and time to effectuate the court’s order before the discovery deadline.”
L.U.Civ.R. 7(b)(2)(C). Defendant received the unsigned interrogatory responses in
December 2016. Rather than file a motion to compel signed responses, it elected to wait
until April 20, 2017 – after discovery had already closed – to seek relief. This Court’s
local rules do not allow litigants to sit on their rights until it is too late for the Court
to craft a remedy other than exclusion – as the Court also reminded Plaintiffs in its
Order [116] of June 7, 2017.
In summary, Plaintiff did not violate Rule 26(g) insofar as that rule only
requires that her attorney sign the discovery responses. To whatever extent Plaintiff
violated Rule 33 by delaying her signature of the interrogatory responses, Defendant
has not articulated any prejudice created by the delay. In fact, Defendant was timely
provided the substantive information it sought, and Plaintiff eventually signed the
responses. The Court denies Defendant’s Motion to Strike [77] Plaintiff’s

has been supplied by Plaintiffs, the Supplemental Answers to Interrogatories will be
stricken pursuant to Fed. R. Civ. P. 26(g)(2).”); Holmes v. All Am. Check Cashing,
Inc., No. 2:11-CV-7-NBB-SAA, 2016 U.S. Dist. LEXIS 18917, at *2 (N.D. Miss. Feb.
10, 2016) (where defendant failed to sign interrogatory responses, court gave it
seven days to do so, rather than imposing sanctions); Kempton v. Mar. Sys., 2013
U.S. Dist. LEXIS 84691, at *11-*12 (E.D. La. June 17, 2013) (where defendant had
not signed responses, the court gave it seven days to provide signed responses,
rather than strike them); cf. Atl. Inv. Mgmt., LLC v. Millenium Fund I, Ltd., 212
F.R.D. 395, 397-98 (N.D. Ill. Aug. 22, 2002) (court rejected argument that an
unsigned subpoena should not be enforced, noting that the oversight was easily
cured).
3

Supplemental Answers to its First Set of Interrogatories.
SO ORDERED AND ADJUDGED, on this, the _13th_____ day of June, 2017.

_s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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