LONG v. LIBERTYWOOD NURSING CENTER et al

Filing 34

MEMORANDUM OPINION AND ORDER. Signed by MAG/JUDGE L. PATRICK AULD on 7/23/2014, that Defendants Motion to Compel Initial Disclosures (Docket Entry 31 ) is GRANTED, except as to Defendant's requests for sanctions, expense-shifting, and mo dification of the Scheduling Order. FURTHER that Plaintiff must serve upon Defendant, on or before August 1, 2014, a list of names of individuals likely to have discoverable information, including such individuals' addresses, telephone numbers, and the subjects of that information. Failure to comply with this Order may result in dismissal of this action.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRIDGET M. LONG,
Plaintiff,
v.
LIBERTYWOOD NURSING CENTER,
Defendant.

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1:13CV315

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Compel Initial Disclosures.

(Docket Entry 31.)

For the reasons

that follow, the Court will grant Defendant’s instant Motion,
except as to its requests for sanctions, expense-shifting, and
modification of the Scheduling Order.
BACKGROUND
Plaintiff’s

Complaint

alleges

racial

discrimination

and

retaliation by Defendant, her former employer, in violation of
Title VII.

(Docket Entry 2 at 2-4; Docket Entry 2-1 at 2.)

At the

Initial Pretrial Conference, held on March 31, 2014, the Parties
agreed to make the initial disclosures required under Federal Rule
of Civil Procedure 26(a)(1)(A)(i) and (ii) by May 31, 2014.

(See

Docket Entry dated Mar. 31, 2014; Text Order dated Mar. 31, 2014.)1
The

Court

1

explained

that

said

initial

disclosure

provisions

The Clerk’s Office maintains a recording of the proceeding
documented by the Docket Entry dated March 31, 2014.

mandated disclosure of the names and contact information for “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 . . . . [and] a copy - or a
description by category and location - of all documents . . . that
the disclosing party may . . . use to support its claims or
defenses,” Fed. R. Civ. P. 26(a)(1)(A)(i) and (ii) (emphasis
added).

(See Docket Entry dated Mar. 31, 2014.)2

Plaintiff then

agreed on the record to provide those initial disclosures to
Defendant by the established deadline.

(See id.)

Defendant’s instant Motion asserts that Plaintiff has not
provided Defendant with a proper list of potential witnesses
pursuant

to

Federal

Rule

of

Civil

Procedure

26(a)(1)(A)(i).

(Docket Entry 31 at 2.) It further requests “that the Court impose
sanctions upon Plaintiff for the failure to comply . . . [,] that
[] Plaintiff be required to pay reasonable expenses, including
attorney’s fees, incurred because of [Plaintiff’s noncompliance] .
. . and that the Court delay deadlines under the Scheduling Order
by 60 days.”

(Id.)

In support of those requests, Defendant’s

instant Motion notes that, on April 24, 2014, Plaintiff filed a
document with the Court entitled “Motion/Request that the Court

2

The Court further encouraged Plaintiff to visit the Clerk’s
Office to obtain a copy of the Local Rules and directed the Clerk
to send Plaintiff copies of the applicable Federal Rules of Civil
Procedure. (See Docket Entry dated Mar. 31, 2014.)
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Subpoena Witness for Trial and Response to Text Order Entered
3/31/2014,”
telephone

which

includes

numbers,

information.

but

a

list

does

not

of

names,

identify

addresses,

any

(See id. at 1-2; Docket Entry 28.)

subjects

and
of

Before filing the

instant Motion, Defendant sent Plaintiff a letter asking that she
supplement the document she had filed with the Court by “add[ing]
under

each

name

the

subjects

of

the

intend[s] to use to support [her] claim.”
Plaintiff

responded in opposition

information

that

[she]

(Docket Entry 31 at 5.)3
to

Defendant’s

instant

Motion, asking: “how is it possible that I might know what any
witness will say on the stand.

Even if a witness told me what they

would say, at court time that could change.”
1.)

(Docket Entry 33 at

In addition, Plaintiff’s Response suggests that she need not

provide any information to Defendant beyond the names, addresses,
and telephone numbers of potential witnesses, because Defendant’s
counsel “can if he so desire [sic] depose every one of them, if his

3

That letter makes no mention of the disclosure of documents
required by Federal Rule of Civil Procedure 26(a)(1)(A)(ii). (See
Docket Entry 31 at 5.) Nor did Defendant develop any argument that
Plaintiff failed to disclose documents required by Federal Rule of
Civil Procedure 26(a)(1)(A)(ii) in its instant Motion or related
brief.
(See Docket Entry 31 at 1-2; Docket Entry 32 at 1-4.)
Accordingly, the Court will not order any relief related to that
disclosure provision at this time.
Plaintiff, however, remains
subject
to
that
disclosure
provision
and
the
related
supplementation requirement under Federal Rule of Civil Procedure
26(e)(1).
“If a party fails to provide information . . . as
required by Rule 26(a) or (e), the party is not allowed to use that
information . . . to supply evidence on a motion, at a hearing, or
at trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1).
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time has not expired.

He nor his client . . . should expect me to

make a case for them, when they have no case.”

(Id.)

Finally,

Plaintiff asserts in conclusory fashion that she “ha[s] complied
with [the] [F]ederal [R]ules of [C]ivil [P]rocedure[] and under no
circumstances should this [C]ourt impose[] the requested sanctions
as suggested by [Defendant].”
reply.

(Id. at 2.)

Defendant chose not to

(See Docket Entry dated July 8, 2014.)
DISCUSSION

“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”
26 advisory committee’s note, 1983 amend.

Fed. R. Civ. P.

Further, the United

States Court of Appeals for the Fourth Circuit has declared that
“[d]iscovery under the Federal Rules of Civil Procedure is broad in
scope and freely permitted.”

Carefirst of Md., Inc. v. Carefirst

Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003).

In

applying the foregoing principles, district judges and magistrate
judges in the Fourth Circuit (including members of this Court) have
repeatedly ruled that the party or person resisting discovery, not
the

party

persuasion.

moving

to

compel

discovery,

bears

the

burden

of

See Kinetic Concepts, Inc. v. ConvaTec Inc., 268

F.R.D. 226, 243–44 (M.D.N.C. 2010) (citing cases).

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Federal Rule of Civil Procedure 26(a) “seeks ‘to accelerate
the exchange of basic information about the case and to eliminate
the paper work involved in requesting such information.’”

Thurby

v. Encore Receivable Mgmt., Inc., 251 F.R.D. 620, 621 (D. Colo.
2008) (quoting Fed. R. Civ. P. 26 advisory committee’s note, 1993
amend.).
thereby

“[V]oluntary disclosures . . . streamline discovery and
avoid

the

practice

of

serving

multiple,

boilerplate

interrogatories and document requests, which themselves bring into
play a concomitant set of delays and costs.”

Chalick v. Cooper

Hosp./Univ. Med. Ctr., 192 F.R.D. 145, 150 (D.N.J. 2000).

“The

obvious purpose of the disclosure requirement of Rule 26(a)(1)(A)
is to give the opposing party information as to the identification
and

location

of

persons

with

knowledge

so

that

they

contacted in connection with the litigation . . . .”

can

be

Biltrite

Corp. v. World Road Mktg., Inc., 202 F.R.D. 359, 362 (D. Mass.
2001) (internal citation omitted).
Plaintiff has acknowledged that the list of individuals she
filed with the Court does not include subjects of information which
they possess.

(See Docket Entry 33 at 1.)

She thus has not

satisfied her duty to serve on Defendant a list of “each individual
likely to have discoverable information - along with the subjects
of that information - that [Plaintiff] may use to support its
claims or defenses . . . .”
(emphasis added).

Fed. R. Civ. P. 26(a)(1)(A)(i)

Plaintiff must provide such a list directly to

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Defendant

(through

its

counsel).

See

Fed.

R.

26(a)(1)(A).

Plaintiff’s suggestion that defense counsel should simply depose
all identified witnesses to find out the subjects of information
they possess and that she should not have to help Defendant make
its case flies in the face of the purpose of discovery recognized
by the Federal Rules of Civil Procedure and the Fourth Circuit.
Accordingly,
Defendant’s

Plaintiff’s
instant

interposition of

Motion

does

not

those

satisfy

objections to
her

burden

of

persuasion as the party resisting disclosure.
Nor

does

Plaintiff’s

assertion

that

she

cannot

predict

precisely “what any witness will say on the stand” (Docket Entry 33
at 1) relieve her of her obligation to identify the subjects about
which potential witnesses may have knowledge.

In providing the

subjects as to which individuals likely have knowledge, “a party is
not necessarily required to provide a minute recitation of the
putative

witness’

knowledge[;

rather,]

the

Rule

26(a)(1)(A)

disclosure should indicate ‘briefly the general topics on which
such

persons

have

05CV01437–LTB–CBS,

knowledge.’”

2007

WL

2593485,

Lobato
at

*5

v.
(D.

Ford,
Colo.

No.
2007)

(unpublished) (quoting Fed. R. Civ. P. 26 advisory committee’s
note, 1993 amend.).

“Thus, while a party is not required to

provide a detailed narrative of the potential witness’ knowledge,
the Rule 26(a)(1)(A) disclosure should provide enough information
that would allow the opposing party to help focus the discovery

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that is needed . . . .”

Lipari v. U.S. Bancorp, N.A., Civ. No.

07–2146–CM–DJW, 2008 WL 2874373, at *2 (D. Kan. July 22, 2008)
(unpublished).

Moreover, Rule 26 specifically provides that “[a]

party must make its initial disclosures based on the information
then reasonably available to it,” Fed. R. Civ. P. 26(a)(1)(E)
(emphasis added), further indicating that Plaintiff’s professed
lack of knowledge about the exact contours of the identified
witnesses’ ultimate testimony need not inhibit her from providing
the

information

26(a)(1)(A)(i).

required

by

Federal

Rule

of

Civil

Procedure

In sum, Plaintiff must “make a reasonable inquiry

and [] provide[] [more than] ‘a laundry list of undifferentiated
witnesses.’”

Guantanamera Cigar Co. v. Corporacion Habanos, S.A.,

263 F.R.D. 1, 6 (D.D.C. 2009) (quoting Sender v. Mann, 225 F.R.D.
645, 651 (D. Colo. 2004)).
Defendant’s instant Motion also seeks sanctions and expenseshifting against Plaintiff.
regard,

Defendant

moves

(See Docket Entry 31 at 2.)

pursuant

to

Federal

Rules

In that
of

Civil

Procedure 16(f)(2) (authorizing imposition of fees and costs for
noncompliance with pretrial orders), 37(a)(3)(A) (permitting motion
to

compel

initial

disclosures

and

sanctions),

37(a)(5)(A)

(providing for expense-shifting in connection with motions to
compel),

and

37(b)(2)(A)

and

(C)

(allowing

sanctions

expense-shifting for failure to obey a discovery order).
Docket Entry 31 at 2; Docket Entry 32 at 1-4.)

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and/or
(See

The Court, however,

should not order such relief if “other circumstances make an award
of expenses unjust.”
37(b)(2)(C).

Fed. R. Civ. P. 16(f)(2), 37(a)(5)(A),

Although “financial indigence by itself does not

necessarily make an award of expenses unjust,” Garity v. Donahue,
No. 2:11CV1805-MMD-CWH, 2014 WL 1168913, at *5 (D. Nev. Mar. 21,
2014)

(unpublished),

determining

how

the

best

Court

to

may

address

consider
an

that

indigent

factor

in

litigant’s

noncompliance with discovery-related obligations, see, e.g., Baez
v. Kennedy Child Study Ctr., No. 11 Civ. 7635(JMF), 2013 WL 705913,
at *2 (S.D.N.Y. Feb. 29, 2013) (unpublished) (declining to award
monetary

sanctions

against

indigent

plaintiff

and

instead

dismissing case); Williams v. Platt, No. CIV-03-281-C, 2005 WL
1950267, at *2 (W.D. Okla. July 29, 2005) (unpublished) (declining
to award expenses against indigent plaintiff and instead warning
“that any future misconduct could result in dismissal of the
suit”).
Under the circumstances of this case, the Court declines to
order monetary sanctions or expense-shifting against Plaintiff at
this time; however, the Court puts Plaintiff on notice that any
failure to comply with this Order or with her other discovery-

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related

obligations

could

result

in

sanctions

against

her,

including dismissal of this action.4
CONCLUSION
Defendant has established grounds for relief under Federal
Rule of Civil Procedure 37.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
Initial Disclosures (Docket Entry 31) is GRANTED, except as to
Defendant’s

requests

for

sanctions,

expense-shifting,

and

modification of the Scheduling Order.
IT

IS

FURTHER

ORDERED

that

Plaintiff

must

serve

upon

Defendant, on or before August 1, 2014, a list of names of
individuals likely to have discoverable information, including such
individuals’ addresses, telephone numbers, and the subjects of that

4

As a final matter, Defendant’s instant Motion requests “that
the Court delay deadlines under the Scheduling Order by 60 days.”
(Docket Entry 31 at 2.) That request likely should have been “set
out in a separate pleading,” M.D.N.C. R. 7.3(a).
Furthermore,
Defendant has not articulated any specific justification for
extending the deadlines in the Scheduling Order (see Docket Entry
31 at 1-2; Docket Entry 32 at 1-5) and the Court thus lacks a
reasonable basis to conclude that good cause exists to support such
relief, see Fed. R. Civ. P. 6(b)(1) (“When an act may be done
within a specified time, the court may, for good cause, extend the
time . . . .” (emphasis added)); see also M.D.N.C. R. 26.1(d)
(“Motions seeking an extension of the discovery period . . . must
set forth good cause justifying the additional time . . . .”). If
the delay occasioned by Plaintiff’s noncompliance with her
disclosure obligations has caused specific prejudice to Defendant’s
ability to comply with any particular case management deadline,
Defendant may seek consent from Plaintiff for an extension and, if
Plaintiff declines to accommodate Defendant’s request, Defendant
may file a proper motion articulating good cause for any particular
extension(s).
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information.

Failure to comply with this Order may result in

dismissal of this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 23, 2014

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