Petrone v. Werner Enterprises, Inc. et al

Filing 273

MEMORANDUM AND ORDER - Defendants' motions to strike the 28 previously undisclosed witnesses (8:11CV401, Filing No. 213; 8:12CV307, Filing No. 116) is granted. Member Cases: 8:11-cv-00401-LES-FG3, 8:12-cv-00307-LES-FG3. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE,

)
)
Plaintiff,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC
)
)
Defendants.
)
______________________________)
PHILLIP PETRONE,
)
)
Plaintiff,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC
)
)
Defendants.
)
______________________________)

8:11CV401

8:12CV307

MEMORANDUM AND ORDER

This matter is before the Court on the motion of
defendants Werner Enterprises, Inc., and Drivers Management, LLC
(collectively, “Werner”) to strike 28 individuals from
plaintiffs’ proposed list of witnesses for trial because they
were not timely disclosed under Federal Rule of Civil Procedure
26(a) or (e) (8:11CV401, Filing No. 213; 8:12CV307, Filing No.
116).

I. Factual Background
The witnesses in question are 28 out of more than
13,000 opt-in class members who are not named plaintiffs.
Plaintiffs’ first reference to these witnesses by name was in the
Proposed Witness List submitted to the Court on March 3, 2014.
II. Legal Standard
Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires
that parties provide “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.”
In addition, Rule 26(e)(1) requires that a party
“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 or corrective information has not otherwise been made
known to the other parties during the discovery process or in
writing.”
Under Rule 37(c), “[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

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to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.”
III. Discussion
A. Initial Disclosure
Plaintiffs argue that their initial Rule 26(a)
disclosure sufficiently identified the 28 opt-in plaintiffs as
witnesses.

That disclosure listed “all current and former

employees of Werner Trucking . . . who participated or completed
Defendants’ ‘Student Driving School’ in the last three (3)
years.”

This disclosure is deficient for at least two reasons.
First, the disclosure does not comply with the

requirements of Rule 26 because it fails to identify the
“subjects” known to the individuals.

This is, perhaps,

unsurprising considering that the group plaintiffs purport to
“identify” in the initial disclosure consisted of over 50,000
individuals -- only a handful of whom plaintiffs’ counsel had
actually corresponded with to determine what, if any, knowledge
they might have regarding the law suit.
This leads to the second deficiency:
entirely too vague.

the disclosure is

The group of people plaintiffs purport to

have disclosed included over 50,000 individuals.

Without

specific identification of the individuals that plaintiffs
believed had information that might be used to support their
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claims, defendants would have been left to guess which
individuals they should depose or, logically but entirely
unreasonably, deposed them all.

This Court concurs with the

several other district courts which have addressed this issue and
found generic categories insufficient to satisfy Rule
26(a)(1)(A)(i).

See Holak v. Kmart Corp., 1:12-CV-00304 AWI,

2014 WL 2565902 (E.D. Cal. June 6, 2014) (finding “putative class
members, as alleged in the operative complaint” insufficient);
Smith v. Pfizer Inc., 265 F.R.D. 278, 283 (M.D. Tenn. 2010)
(finding “friends and family of the deceased” and “defendants’
employees and representatives with knowledge as to the sale,
promotion and/or marketing” insufficient); Labadie v. Dennis,
1:07-CV-480, 2008 WL 5411901 (W.D. Mich. Dec. 23, 2008) (finding
“all members of plaintiff's family” and “all investigating
persons” insufficient).

Listing a group of 50,000 individuals

amounts to non-disclosure.
Finally, class actions are different procedural
vehicles.

In a non-class suit, defendants would be on notice

that the plaintiff or plaintiffs might have information that
would support their claim.

In class actions, named plaintiffs

are certified by the court to be representative of the claims of
all other plaintiffs.

It is not obvious, in fact it may be

counter-intuitive, that plaintiffs other than the named
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plaintiffs would have non-cumulative information that would
support their case.

If plaintiffs’ counsel knew these witnesses

had such information, it was their obligation to disclose the
names and information they had to the defendants as soon as they
became aware of it.
B. Knowledge of Witnesses Through Discovery
Next plaintiffs argue that they were excused from
specifically identifying these 28 witnesses during the discovery
period because Rule 26(e) only requires supplementation if the
“information has not otherwise been made known to the other
parties during the discovery process.”

Plaintiffs argue that

when the 28 witnesses signed the consent forms and opted-in to
the lawsuit, defendants were on notice that the witnesses had
potentially admissible information.
of over 13,000 driver-trainees.

The opt-in class consisted

For the same reasons as above,

this does not provide the disclosure intended by the rules.
C. Witness List as Supplemental Disclosure
Plaintiffs also contend that the Proposed Witness List
itself constituted a timely supplemental response under Rule
26(e), noting that a month remained before the discovery
deadline.

This argument also fails.

The Proposed Witness List

did not include the “subjects of that information” that the
witnesses possessed.

See Fed. R. Civ. Pro. 26(a)(1)(A)(i).
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Nor

have plaintiffs made a showing that such a disclosure would be
timely.

If plaintiffs’ counsel knew these witnesses had such

information, it was their obligation to disclose the names and
information they had to the defendants as soon as practicable
after they became aware of it -- presumably they knew about at
least some of these witnesses well before the witness disclosure
deadline.
D. Standard for Exclusion
Plaintiffs have failed to timely disclose individuals
with information under Rule 26(a) and (e) during the discovery
process.

The Federal Rules instruct district courts that such a

“party is not allowed to use the information or witnesses . . .
unless the failure was substantially justified or is harmless.”
Fed. R. Civ. Pro. 37(c)(1).

The Eighth Circuit has endorsed four

considerations to aid in the substantial-justification/
harmlessness analysis:

“(1) the reason the party fails to name

the witness; (2) the importance of the testimony; (3) the amount
of time the opposing party needs to properly prepare for the
testimony; and (4) whether a continuance would in some way be
useful.”

Citizens Bank of Batesville, Arkansas v. Ford Motor

Co., 16 F.3d 965, 966 (8th Cir. 1994).
Plaintiffs have made no showing regarding the
importance of these witnesses’ testimony, and the Court
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anticipates that they will be cumulative of the testimony of the
named plaintiffs.

Allowing these witnesses to testify without

giving defendants an opportunity to conduct depositions would be
highly prejudicial.

Given that defendants became aware that

these 28 individuals possessed potentially admissible information
only 30 days from the end of the discovery period and the
advancing trial schedule, the Court finds that an extension of
discovery for the deposition of 28 additional witnesses will
unnecessarily delay the trial of this matter.

Ostensibly, given

the arguments noted above, plaintiffs’ failure is due to their
belief that they had fulfilled their disclosure duties despite
their failure to name the 28 witnesses specifically or detail the
subjects of the witnesses’ knowledge.

This weighs only slightly

in favor of allowing the witnesses to testify.

Thus, the Court

finds that plaintiffs failure to disclose was neither
substantially justified nor harmless.

Accordingly,

IT IS ORDERED that defendants’ motions to strike the 28
previously undisclosed witnesses (8:11CV401, Filing No. 213;
8:12CV307, Filing No. 116) is granted.
DATED this 1st day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
_____________________________
LYLE E. STROM, Senior Judge
United States District Court

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