Perry v. Clements et al

Filing 124

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 107 Motion for Sanctions (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TAUNYA PERRY,
Plaintiff,
vs.

Case No. 15-CV-95-CVE-FHM

DERIK DERWIN, et al.,
Defendants.
OPINION AND ORDER
Defendants’ Durborow and Derwin’s Motion for Sanctions Against Plaintiff’s Counsel,
[Dkt. 107], has been referred to the undersigned United States Magistrate Judge for
decision. Defendants request that Plaintiff’s attorney be admonished and required to pay
Defendants’ attorney fees for counsel’s alleged “contempt and total disregard” of the
requirements of Fed.R.Civ.P. 26(a)(1)(A)(i). [Dkt. 107, p. 7]. The matter has been fully
briefed, [Dkt. 107, 119, 122], and is ripe for decision.
Background
Plaintiff listed Summer Crowder as a witness pursuant to the Court’s amended
Scheduling Order and disclosed her testimony as: “Former ‘dispatcher’ at Ottawa County
Jail. Policies, practices and customs of the Ottawa County Sheriff’s Office.” [Dkt. 107-1,
p. 2]. Plaintiff also provided an address (which may have been incorrect) and a telephone
number for Crowder.
Defendants did not file anything with the Court objecting to the sufficiency of the
disclosure regarding Crowder or seeking additional time to depose her until after Plaintiff
filed an affidavit by Crowder in opposition to Defendants’ motion for summary judgment.
At that point Defendants filed a motion to depose Crowder and enlarge the time to file their

reply in support of the motion for summary judgment, which were granted. Defendants also
filed the instant motion for sanctions against Plaintiff’s attorney for alleged violations of Rule
26(a)(1)(A)(i).
As relevant here, Rule 26(a)(1)(A)(i) provides that a party must disclose:
the name and, if known, the address and phone number of
each individual likely to have discoverable information–along
with the subject of that information–that the disclosing party
may use to support its claims or defenses unless the use would
be solely for impeachment.
The rule uses the term “subject” of the discoverable information to describe what must be
disclosed. The Advisory Committee Notes to the1993 Amendment to Rule 26, subdivision
(a), paragraph (1), subparagraph (A) state “[i]ndicating briefly the general topics on which
such persons have information should not be burdensome, and will assist other parties in
deciding which depositions will actually be needed.”
Defendants contend the disclosure about Ms. Crowder’s testimony is sanctionable
because it did not put them on notice that Ms. Crowder might provide testimony about
specific alleged acts of wrongdoing or misconduct in the jail or testimony about complaints
Crowder made to the Sheriff in 2006. The Rule 26(a)(1)(A)(i) requirement to disclose the
“subject” of the discoverable information or “indicate[] briefly the general topics” does not
mandate the level of detail Defendants demand. Moreover, in the context of a §1983
action, the disclosure that a former employee is going to testify about policies, practices,
and customs could alert the other parties that the witness may testify about similar acts of
wrongdoing or misconduct and assist them in deciding if a deposition is needed.
In sum, the Rule 26(a)(1)(A)(i) requirement to provide the “subject” of the
discoverable information is not precise. Courts may require different levels of detail in the
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Rule 26 disclosures based on the needs of individual cases and Defendants would have
had an arguable position that additional detail should be provided if they had filed a motion
seeking a more detailed disclosure. But, Defendants’ contention that Plaintiff’s attorney
should be sanctioned for “contempt and total disregard” of the requirements of Fed.R.Civ.P.
26(a)(1)(A)(i) is not supported by the law or the facts.
Defendants’ Durborow and Derwin’s Motion for Sanctions Against Plaintiff’s Counsel,
[Dkt. 107], is DENIED.
SO ORDERED this 2nd day of November, 2016.

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