WORSTER-SIMS et al v. TROPICANA ENTERTAINMENT, INC. et al
Filing
152
MEMORANDUM OPINION AND ORDER: Plaintiff is granted leave to depose Chief Jubilee, Chief Mooney, Capt. T. Friel, Capt. R. Roff and a Fed. R. Civ. P. 30(b)(6) witness to testify about Atlantic City's "early warning system" from 2001-2012, and how it was used or applied to Officer Jones by no later than 12/15/2015. Signed by Magistrate Judge Joel Schneider on 11/9/2015. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JAMIE DEE WORSTER-SIMS,
Plaintiff,
Civil No. 13-1981 (RBK/JS)
v.
TROPICANA ENTERTAINMENT, INC.,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on plaintiff’s application
to strike relevant documents produced by Atlantic City on the
last
day
of
discovery.
In
the
alternative,
plaintiff
wants
discovery relevant to the documents.
By way of brief background, this is a '1983 excessive force
lawsuit against Police Officer Michael Jones and Atlantic City.
Although
the
case
has
been
pending
since
March
28,
2013,
Atlantic City produced on October 30, 2015 four (4) pages of
Police Department Internal Affairs documents relating to “early
warnings”
given
to
Jones.
See
Plaintiff’s
November
6,
2015
Letter Brief, Exhibit A, Doc. No. 149 (pages 6-9). The documents
are unquestionably central to the Monell issues in the case and
should have been produced with Atlantic City’s Fed. R. Civ. P.
1
26(a) disclosures due by July 15, 2013.
See June 19, 2013 Order
&1, Doc. No. 14. 1
The Court is faced with a difficult choice. On the one hand
the Court could bar the use of the documents because they were
produced late. However, this runs counter to the Third Circuit’s
preference for cases to be decided on their merits. See ABB Air
Preheater,
Inc.
v.
Regenerative
Environmental
Equipment
Co.,
Inc., 167 F.R.D. 668, 671 (D.N.J. 1996)(citations omitted)(“The
Third Circuit has, on several occasions, manifested a distinct
aversion to the exclusion of important testimony absent evidence
of extreme neglect or bad faith on the part of the proponent of
the testimony.”) If the documents are barred it will also lead
to complications at trial about whether Atlantic City can elicit
testimony
about
documents
are
the
barred
early
warning
plaintiff
will
system.
submit
Further,
an
if
expert
the
report
stating that no early warning system existed. This is awkward
since plaintiff just learned this may not be the case. On the
other hand, if the Court does not bar the documents plaintiff is
plainly entitled to discovery to cure the prejudice caused by
Atlantic
City’s
late
production.
This
will
delay
an
already
prolonged case. Neither of these alternatives is appealing.
1
Rule 26(a) requires parties to produce or identify documents
they may use to support their defenses. The early warning
documents unquestionably fall into this category.
2
Given
the
difficult
choice
the
court
has
to
make,
it
reluctantly comes out on the side of not barring Atlantic City’s
use
of
the
discovery.
documents
and
permitting
plaintiff
to
take
more
Although the Court is reluctant to further delay the
case, it has a strong preference for presenting all relevant
evidence to the jury and letting the case be decided on its
merits.
The
Court
adds
integrity
of
Atlantic
confident
they
respond
to
that
used
discovery.
it
has
City’s
lawyers
reasonable
Not
no
and
reason
in
to
the
question
case,
appropriate
surprisingly,
as
soon
the
and
is
efforts
to
as
counsel
learned about the early warning documents they were produced.
Unfortunately, the Court’s confidence in Atlantic City’s lawyers
cannot be said for Atlantic City. Atlantic City’s conduct leaves
a lot to the desired. How and why the documents at issue were
not produced earlier in the case is almost beyond comprehension.
The documents are central to the case, the documents were easily
retrievable, and the documents concern issues that have been at
the
forefront
of
the
case
since
its
outset.
Moreover,
the
documents were located in the same room where the other Internal
Affairs documents produced in the case were located. It is also
perplexing
why
the
subject
early
warning
documents
were
not
located in Jones’ personnel file. After all the '1983 litigation
Atlantic City has been involved in, Atlantic City has no excuse
3
for failing to produce key documents unquestionably central to
the
case.
Given
this
situation
the
Court
can
understand
why
lawyers for the plaintiffs in Atlantic City’s '1983 cases have a
deep seated skepticism that Atlantic City properly responds to
discovery.
Even though the Court will not bar the subject documents,
the Court will not permit Atlantic City to “skate by.” The Court
will Order Atlantic City to reimburse plaintiff’s fees and costs
occasioned
by
production
its
is
inexcusable
not
delay.
substantially
Atlantic
City’s
justified.
late
Further,
no
circumstances exist to make an award of fees and costs unjust.
Accordingly,
for
the
foregoing
reasons,
it
is
HEREBY
ORDERED this 9th day of November, 2015, as follows:
1.
By
no
later
than
December
15,
2015,
plaintiff
is
granted leave to depose Chief Jubilee, Chief Mooney, Capt. T.
Friel, Capt. R. Roff and a Fed. R. Civ. P. 30(b)(6) witness to
testify about Atlantic City’s “early warning system” from 20012012, and how it was used or applied to Officer Jones. 2 The
depositions shall be limited to the recently produced documents
and Atlantic City’s “early warning system.”
2
Plaintiff may, but does not have to, take all of these
depositions. It may be that plaintiff can obtain what he wants
from some but not all of the witnesses.
4
2.
Pursuant
to
Fed.
R.
Civ.
26(g) 3
P.
and
37(a)(5),
Atlantic City shall pay the cost of plaintiff’s court reporter
and
transcripts.
transcripts.
attorney(s)
witnesses
All
other
Atlantic
City
for
(not
the
fees
preparation
counsel
shall
also
incurred
time)
shall
pay
for
to
reimburse
listed
actually
in
this
their
own
plaintiff’s
depose
Order.
the
In
addition, Atlantic City shall reimburse plaintiff for the fees
incurred for the successful application to bar Atlantic City’s
documents or in the alternative to conduct additional discovery.
Since the Court finds that Atlantic City’s attorneys were not
3
Atlantic City violated Rule 26(g) because it provided an
inaccurate certification that its Rule 26(a) disclosure was
complete. Rule 26(g) requires all attorneys to engage in
pretrial discovery in a responsible manner consistent with the
spirit and purposes of liberal discovery. Kosher Sports, Inc. v.
Queens Ballpark Co., LLC, No. 10-cv-2618, 2011 WL 3471508, at *7
(E.D.N.Y. Aug. 5 2011)(quoting Fed. R. Civ. P. 26(g) Advisory
Committee’s note to 1983 Amendment). Pursuant to the Rule an
attorney’s
signature
certifies
that
any
disclosures
were
complete and accurate at the time they were made and that a
reasonable inquiry was made. Singer v. Covista, Inc., C.A. No.
10-6147 (JLL), 2013 WL 1314593, at *9 (D.N.J. March 28, 2013).
Unless the conduct was harmless, a violation of Rule 26(g)
without substantial justification must result in the imposition
of sanctions. Rule 26(g) is cast in mandatory terms. Chambers v.
Nasco, Inc., 501 U.S. 32, 51 (1991). Sanctions are encouraged in
order to curb discovery abuses. Singer, at *9. The sanction may
be imposed against the certifying attorney, the client, or both.
Markey v. Lapolla Industries, Inc., No. CV 12-4622 (JS)(AKT),
2015 WL 5027522, at *18 (E.D.N.Y. Aug. 25, 2015). Substantial
justification exists where there is a genuine dispute or if
reasonable people could differ. Id. As to what Rule 26(g)
sanction to impose, this is left to the Court’s discretion. The
Rule merely provides that the sanction be “appropriate.”
Chambers, 501 U.S. at 51.
5
complicit in the oversights described herein, all fees and costs
shall be paid by Atlantic City.
3.
By
December
31,
2015,
plaintiff
shall
serve
an
affidavit pursuant to L. Civ. R. 54.2 setting forth the fees to
be reimbursed.
All objections shall be served by January 15,
2016.
4.
account
A new Scheduling Order will be separately entered to
for
the
unfortunate
extension
of
time
the
Court
granting.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
6
is
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