Muldowney v. K-Mart Corporation et al

Filing 54

ORDER granting in part and denying in part K-Mart/Sears' motion to strike 45 as follows: 1. Discovery re-opened for 30 days to allow parties to conduct discovery re; 10/11/09 e-mail chain & depose Andrea Fiorentio & William Muldowney re: same.; 2. Parties shall have 20 days from date of receipt of depo transcripts to file supp'l br'ng w/ ct re: this issue. (See order for complete details.) Signed by Honorable Christopher C. Conner on 12/11/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM MULDOWNEY,
Plaintiff,
v.
K-MART CORPORATION and
SEARS HOLDINGS, INC.,
Defendants

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Civil Action No. 1:10-cv-2555

(Judge Conner)

ORDER
And now this 11th day of December, 2012, upon consideration of Defendants
K-Mart Corporation and Sears Holdings, Inc.’s (“K-Mart/Sears”) motion to strike
(Doc. 45) certain exhibits attached to Plaintiff William Muldowney’s (“Muldowney”)
response (Doc. 28) to K-Mart/Sears’s previously filed motion for summary judgment
(Doc. 22), and the court acknowledging that these exhibits are an e-mail chain
allegedly sent on October 11, 2009, as well as the verified statements of Muldowney
and paralegal Andrea Fiorentino relating to this email chain, and the court noting
that copies of the email chain were provided to K-Mart/Sears after the close of
discovery and after K-Mart/Sears filed their motion for summary judgment, and the
court further noting that Andrea Fiorentino was never listed as an individual with
potentially discoverable information as required by Federal Rule of Civil Procedure
26(a)(1)(A)(i) (stating “a party must . . . provide to the other parties [] 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”), and the court further
recognizing the parties’ agreement that an appropriate remedy in the captioned
case is to re-open discovery for the limited purpose of deposing Muldowney and
Andrea Fiorentino regarding the October 11, 2009 email chain, (see Doc. 46, at 8 n.7
(“[K-Mart/Sears] respectfully request[] the right to conduct discovery with respect
to the e-mails . . . and with respect to Ms. Fiorentino’s verified statement); Doc. 50,
at 4 (“Plaintiff’s counsel takes no issue with this request and indeed agrees that,
given the inadvertent failure to produce the actual emails . . . Defendants have the
right to take additional discovery on those emails should they wish to do so”)), and
the court finding that the email chain and statements of Muldowney and Andrea
Fiorentino are directly relevant to Muldowney’s pending summary judgment
motion, it is hereby ORDERED that K-Mart/Sears’ motion to strike (Doc. 45) is
GRANTED in part and DENIED in part as follows:
1.

Discovery in the captioned matter is re-opened for a period of thirty
(30) days to allow the parties to conduct discovery regarding the
October 11, 2009 email chain and to depose Andrea Fiorentino and
William Muldowney regarding this email chain.

2.

The parties shall have twenty (20) days from the date of the receipt of
the deposition transcripts to filed supplemental briefing with the court
regarding this issue.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge