Gomez et al v Tyson Foods

Filing 151

ORDER - IT IS ORDERED: The plaintiffs' Motion to Strike Defendant's Amended Trial Witness List (Filing No. 117 ) is denied. The plaintiffs shall have until October 31, 2012, to depose Mark Gordon and Jason Poole, if necessary. Ordered by Magistrate Judge Thomas D. Thalken. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSE A. GOMEZ, et al.,
Plaintiffs,
vs.
TYSON FOODS, INC.,
Defendant.

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8:08CV21

ORDER

This matter is before the court on the plaintiffs’ Motion to Strike Defendant’s
Amended Trial Witness List (Filing No. 117). The plaintiffs filed a brief (Filing No. 117-1)
and an index of evidence (Filing No. 117-2) in support of the motion. The defendant filed
a brief (Filing No. 124) and an index of evidence (Filing No. 125) in opposition to the
motion. The plaintiffs filed a brief (Filing No. 132) and an index of evidence (Filing No. 133)
in reply.

BACKGROUND
The plaintiffs are current or former employees who worked some time during the
period January 17, 2004, to the present, at the defendant’s Dakota City, Nebraska, meat
processing facility. See Filing No. 1 - Complaint ¶¶ 1-3, 14. The case was filed as a class
action alleging violations of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201,
et seq., and state law regarding pay for pre- and post-production line activities, including
“donning and doffing,” and other activities in connection with job functions. The plaintiffs
seek relief for alleged violations of state and federal wage-and-hour laws, including alleged
failures to pay minimum wage and overtime compensation for uncompensated job-related
activities.
The plaintiffs filed the instant action on January 16, 2008. See Filing No. 1. The
defendant filed an answer on June 4, 2008.

See Filing No. 10.

The matter was

temporarily stayed while the Judicial Panel on Multidistrict Litigation reviewed, then denied,
the defendant’s motion to transfer the case. See Filing Nos. 16 and 18. On November 6,

2008, the court dissolved the stay and the parties were free to begin discovery. See Filing
No. 22. Due to the volume of class certification discovery materials, the parties were
granted several extensions of time to complete such discovery. See, e.g., Filing No. 37.
On March 30, 2011, the court certified the plaintiffs’ class, pursuant the Fed. R. Civ. P. 23,
for those employees who were paid under a “gang time” compensation system in the
Slaughter or Processing departments. See Filing No. 76 - Order. The plaintiffs have not
sought conditional certification of a class in relation to the FLSA collective action claims.
On November 23, 2011, the court entered a progression order scheduling trial for
March 18, 2013. See Filing No. 93. The order gave the parties until March 23, 2012, to
serve each other with the name, address, and telephone number of each witness expected
to testify at trial. Id. at 3. At the parties’ request, on July 12, 2012, the court extended the
deadline for completing discovery to July 30, 2012, and for filing motions for summary
judgment to August 30, 2012. See Filing No. 110 - Text Order.
On March 23, 2012, the defendant served and filed a redacted version of the trial
witness list. See Filing No. 95. The list contains eleven witnesses who the defendant
expects to call to testify at trial and twenty-two witnesses the defendant may call. Id. On
July 30, 2012, at 4:01 p.m., the defendant filed an amended trial witness list. See Filing
No. 112. The amended list contains one additional will-call witness and sixteen additional
may-call witnesses. Id. Of these additional witnesses, eleven are opt-in plaintiffs, four are
defendant’s employees, and two are employed by a union. See Filing No. 117-1 - Brief p.
3. The defendant served supplemental initial disclosures on July 31, 2012, and on August
1, 2012, listing these additional witnesses. See Filing No. 117 - Ex. B and Ex. C.1
The plaintiffs argue the defendant could have, but failed to, timely disclose these
witnesses. Id. Additionally, the plaintiffs state they made deposition decisions based on
the defendant’s March 23, 2012, witness list by, for example, deciding not to depose
people despite their job title because the defendant did not list them on the witness list.
Id. at 4. Without further explanation, the plaintiffs contend they “would be prejudiced by
not knowing the identity of Tyson’s trial witnesses at the appropriate time.” Id.
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The court notes the defendant failed to file certificates of service related to these supplem ental
disclosures as required by NECivR 26.1.
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The defendant opposes the plaintiffs’ motion and argues striking witnesses is an
overly harsh sanction under the circumstances. See Filing No. 124 - Response p. 1. The
defendant contends the newly listed plaintiffs are not an issue because those witnesses
had been listed by the plaintiffs and the defendant had previously reserved the right “to
examine witnesses listed on Plaintiffs’ witness list.”
Defendant’s Trial Witness List p. 5).

Id. (quoting Filing No. 95 -

Additionally, the defendant argues it properly

amended the list pursuant to Fed. R. Civ. P. 26(e) subsequent to depositions taken in July
2012 revealing the relevance of the witnesses’ trial testimony. See Filing No. 124 Response p. 2-3. However, the defendant states the plaintiffs were aware of the identity
and potential relevance of the newly listed witnesses when the defendant became aware
of them. Id. at 3-4. The defendant argues the plaintiffs are not prejudiced by the
amendment to the witness list because three of the newly listed witnesses have already
been deposed and a fourth witness was scheduled for deposition. Id. at 4-5. Moreover,
the defendant argues there is ample time between now and trial to conduct depositions of
the remaining two newly listed witnesses. Id. at 3.
In their reply, the plaintiffs contend they suffer prejudice by not being allowed to
depose the newly listed witnesses and file their own amended witness list based on
information learned during depositions taken in July 2012. See Filing No. 132 - Reply p.
5-6.

Specifically, the plaintiffs provide evidence they sought to depose one of the

witnesses three days before the end of discovery and the defendant declined to schedule
the deposition, because the defendant had not listed the person on the witness list, among
other reasons. See Filing No. 133-1 at p. 27 - Ex. B July 26, 2012 E-mail. The plaintiffs
seek an order striking the defendant’s amended witness list or, in the alternative, seek to
depose the newly listed witnesses and file their own amended witness list. Id.

ANALYSIS
The Federal Rules of Civil Procedure are construed “to secure the just, speedy, and
inexpensive determination” of all proceedings before the court.

Fed. R. Civ. P. 1.

Generally, “[b]road discovery is an important tool for the litigant . . . .” WWP, Inc. v.
Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011). “One of
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the purposes of discovery is to eliminate unfair surprise.

Rule 37’s enforcement

mechanism helps accomplish this purpose.” Doe v. Young, 664 F.3d 727, 734 (8th Cir.
2011). Accordingly, the parties are bound by the requirements of discovery rules and
orders, including deadlines.
Under the Federal Rules of Civil Procedure:
[A] party must, without awaiting a discovery request, provide to
the other parties:
(i) 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,
unless the use would be solely for impeachment;
Fed. R. Civ. P. 26(a)(1)(A).
Additionally, “a party must provide to the other parties and promptly file . . .
information about the evidence that it may present at trial other than solely for
impeachment” including “(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. . . .” Fed. R. Civ. P. 26(a)(3)(A). “Unless
the court orders otherwise, these disclosures must be made at least 30 days before trial.”
Fed. R. Civ. P. 26(a)(3)(B). In this case, the court ordered the parties to provide trial
witness information on March 23, 2012, well before the discovery deadline. See Filing No.
93 - Progression Order p. 3. Nevertheless, the parties are under a continuing obligation
to supplement or correct any disclosure, including an initial disclosure and response to an
interrogatory, that is or becomes incomplete or incorrect. Fed. R. Civ. P. 26(e).
The court’s authority to strike a witness for untimely disclosure is found in Rule
37(c).
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. In addition to or instead of this
sanction, the court, on motion and after giving an opportunity
to be heard:

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(A) may order payment of the reasonable
expenses, including attorney’s fees, caused by
the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions,
including any of the orders listed in Rule
37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c).
Under Rule 37(b)(2)(A) the court may enter an order:
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the
action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing
designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party;
or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A).
“[T]he district court has wide discretion to fashion a remedy or sanction as
appropriate for the particular circumstances of the case.” Wegener v. Johnson, 527 F.3d
687, 692 (8th Cir. 2008). “When fashioning a remedy, the district court should consider,
inter alia, the reason for noncompliance, the surprise and prejudice to the opposing party,
the extent to which allowing the information or testimony would disrupt the order and
efficiency of the trial, and the importance of the information or testimony.” Id. Additionally,
the court keeps in mind, “exclusion of evidence is a harsh penalty and should be used
sparingly.” ELCA Enters. v. Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 190 (8th
Cir. 1995).
Having examined the facts in this case, the court finds the defendant’s failure to
timely disclose the additional witnesses in March is substantially justified and harmless.
The defendant states it discovered the relevance of the witnesses’ testimony during
depositions taken shortly before the end of the discovery period yet the witnesses were
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known to the plaintiffs prior to that time. There is no reason to believe the defendant
omitted the witnesses in bad faith. Further, allowing the testimony of these witnesses will
not result in any surprise or prejudice to the plaintiffs.

The plaintiffs have had an

opportunity to depose all except two of the witnesses. There are several months remaining
prior to the scheduled trial and the defendant agreed to make the newly listed witnesses
available for deposition. Under these circumstances, the plaintiffs fail to show any actual
prejudice caused by the late disclosure if they are allowed to depose the witnesses.
Accordingly, the plaintiffs may depose Mark Gordon and Jason Poole on or before October
31, 2012. To the extent the plaintiffs may seek to file an amended witness list, they shall
confer with counsel for the defendant to minimize the court’s involvement and potential
prejudice to the defendant. Upon consideration,

IT IS ORDERED:
1.

The plaintiffs’ Motion to Strike Defendant’s Amended Trial Witness List (Filing

No. 117) is denied.
2.

The plaintiffs shall have until October 31, 2012, to depose Mark Gordon and

Jason Poole, if necessary.
DATED this 4th day of September, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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