Scheetz v. Kaemingk et al
ORDER granting in part 113 Motion to Strike. Signed by U.S. District Judge Karen E. Schreier on 11/21/17. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CRYSTAL VAN VOOREN, Major
Special Security, in her individual
and official capacity; and
HUNTER SUMMERS, Lieutenant
Special Security, in his individual
and official capacity,
ORDER GRANTING PLAINTIFF’S
MOTION TO STRIKE IN PART
Plaintiff, Daryl Scheetz, moves to strike the affidavit of defendant Hunter
Summers dated September 13, 2017, including all attached exhibits and for
other appropriate Rule 37 sanctions. Docket 113. Defendants, Crystal Van
Vooren and Hunter Summers, oppose the motion. Docket 122.
Plaintiff’s amended complaint alleges that defendants retaliated against
him for exercising his First Amendment rights by restricting plaintiff’s visitation
to Class II visitation. Docket 66. Defendants maintain that plaintiff’s visitation
was restricted because he was under investigation for smuggling contraband
into the prison with another prisoner, Nathaniel Hayes. On February 27, 2017,
defendants responded to plaintiff’s interrogatories and requests for production.
Plaintiff’s interrogatories asked defendants to identify correspondence,
information, reports and documents relied upon in placing Scheetz on Class II
visitation status. Docket 115-12 at 7-8. In response, Summers identified
Leeland Tjeerdsma’s affidavit (Docket 41-16) and his own September 25, 2015,
affidavit (Docket 75-1). Docket 115-12 at 7-8. Summers was further asked to
identify the basis for statements made in his September 2015 affidavit and
specifically to identify any exhibits he intended to introduce at trial.
Docket 115-12 at 7. In response, he identified an Administrative Detention
Order (Docket 41-1), Scheetz’s Judgment of Conviction (Docket 41-15), the
South Dakota Board of Pardons and Paroles Violation Report (Docket 75-7),
and Scheetz’s Request for Administrative Remedy (Docket 75-16). Docket 11512 at 7.
In addition, plaintiff served sixteen requests for production on Summers.
In response to the requests for production, Summers produced three
documents entitled Attachments A, B, and C. Attachment A is an email thread
from April 18, 2013, between Summers and Van Vooren. Docket 115-12 at 12.
Attachment B is a disciplinary report documenting charges made against
Nathaniel Hayes. Id. at 13. And Attachment C is a Confidential Informant
Report drafted by Summers regarding information on Hayes. Id. at 14. On June
30, 2017, this court granted Scheetz leave to extend discovery and take six
depositions. Docket 107. The depositions of defendants Van Vooren and
Summers were set for July 19, 2017. On July 13, 2017, Scheetz sent a letter to
defendants requesting that defendants produce an email to which Warden
Dooley referred to in paragraphs 8 and 9 of his September 17, 2015 affidavit.
Docket 115-3 at 2. Scheetz also asked that the defendants review the docket
and produce “all documents that should be produced pursuant to Rule 26.” Id.
Defendants responded to the letter stating that the email referred to by Dooley
could not be located, and defendants did not produce any additional
documents. Docket 115-4 at 3-4.
During Summers’ deposition, he was questioned about his efforts to
locate emails related to Scheetz. See Docket 115-1 at 14. Scheetz’s counsel
asked, “Are there other emails between you and Miss Van Vooren about the
Hayes investigation that you haven’t produced in this case?” Id. Summers
responded, “No.” Id. Scheetz’s counsel also questioned Van Vooren as to
whether there was any other responsive email correspondence and she denied
that there was. See Docket 115-2 at 3-4, 6-7.
On July 25, 2017, during Leland Tjeerdsma’s deposition, defendants
provided Scheetz with an email from Tjeerdsma to Summers regarding the
2012 investigation of Scheetz smuggling contraband with a correctional officer.
Docket 115-10 at 4. Van Vooren was also included on the email, but neither
defendant had produced the email until after their depositions. On August 17,
2017, defendants produced eight pages of emails from Tjeerdsma 1 that had
been sent to DOC counsel Ashley McDonald on August 26, 2014. Docket 11510. Also on August 17, 2017, defendants produced, for the first time, 78 pages
of documents including: a May 7, 2013 email; a May 10, 2013 email; a
November 5, 2013 email; a November 6, 2013 email; an Administrative
The court will refer to this group of emails as the “Tjeerdsma emails.”
Detention Order dated November 1, 2016, and a November 1, 2016 email from
Lee Kaufenberg. 2 Summers now offers those documents in his September 13,
2017 affidavit. Docket 111. Because defendants disclosed the documents after
the defendants’ July 19, 2017 depositions, Scheetz’s counsel was unable to
depose the defendants about the contents of the documents.
On July 26, 2017, Scheetz served a subpoena for a Rule 30(b)(6)
deposition and subpoena duces tecum to the South Dakota Department of
Corrections (DOC) and set the date for the deposition and production on
August 17, 2017. Docket 115-5. The notice of deposition identified ten subject
areas the deponent should be prepared to address. Id. at 6. The notice also
identified sixteen categories of documents that the DOC should produce. Id. at
8. Scheetz alleges that the DOC did not produce a witness who was
knowledgeable about three of the topics 3 and instead produced an affidavit
The court will refer to this group of documents as the “Summers Affidavit
3 The three topics Scheetz alleges that the Rule 30(b)(6) witness could not
testify to read as follows:
7. All efforts undertaken by the Department of Corrections to
identify and produce responsive information to outstanding
discovery requests from Plaintiff, including the scope of the
information reviewed, the custodian of information interviewed or
consulted, and the nature of the effort made to locate information
within the Department’s custody, possession, or control.
8. All efforts undertaken by the Department of Corrections to
identify and produce responsive information to the list of topics
identified in Exhibit B, including the scope of the information
reviewed, the custodians of information interviewed or consulted,
and the nature of the effort made to locate information within the
department’s custody, possession, or control.
from an attorney with the South Dakota Attorney General Office that outlined
the search terms used to search the email database. See Docket 115-14. The
attorney’s affidavit described the process by which the DOC searched its
emails. Id. He conducted the initial inquiry of the mailboxes of Warden Robert
Dooley, Van Vooren, and Steve Baker on July 25, 2017, using the terms
“Scheetz AND Visitation.” Id. at 4. He performed the second search of the
mailboxes of Van Vooren, Art Allcock, Summers, Bob Dooley, Denny Kaemingk,
Clifton Fantroy, Steve Baker, Troy Ponto, and Darin Young on August 11 and
14 of 2017. Id. at 5. The second search used the terms “Scheetz AND visit,”
“Scheetz AND Visitation,” and “Scheetz AND parole.” Id. The affidavit states
that, in total, the searches produced 548 results. Id.
Scheetz now moves this court for the following: (1) to dismiss the
defendants’ renewed motion for summary judgment (Docket 109) because it is
based on evidence that was not timely disclosed; (2) to award Scheetz
reasonable attorney’s fees for time spent on addressing the lack of production
with defendants’ counsel, preparing for the Rule 30(b)(6) witness deposition,
drafting and preparing this motion to strike (Docket 113), and drafting and
preparing a response to the defendants’ renewed motion for summary
9. All efforts undertaken by the Department of Corrections to
identify and produce information that relates to the claims and
defenses set out in the Department of Correction’s responsive
pleading, including the scope of the information that was reviewed,
the custodians of information interviewed or consulted, and the
nature of the effort made to locate information within the
Department’s custody, possession, or control.
Docket 115-5 at 6-7.
judgment; (3) to inform the jury of defendants’ failure to timely produce
responsive documents through an adverse jury instruction; and (4) to preclude
defendants from offering, referring to, testifying, or otherwise relying on all
untimely-disclosed documents for any purpose other than impeachment.
The untimely disclosure of the Tjeerdsma emails and the Summers
Federal Rule of Civil Procedure 26(a)(1)(A)(ii) requires parties to make
initial disclosures including “a copy—or a description—of all documents,
electronically stored information, and tangible things that the disclosing party
has in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P.
26(a)(1)(A)(ii). If a party fails to satisfy an initial or supplemental disclosure, the
court has discretion to apply appropriate sanctions—unless the nondisclosure
“was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). An untimely
disclosure is considered a nondisclosure. Trost v. Trek Bicycle Corp., 162 F.3d
1004, 1008 (8th Cir. 1998). The Eighth Circuit applies a four-part balancing
test to determine whether a failure to disclose is substantially justified or
harmless and to fashion an appropriate remedy. Wegener v. Johnson, 527 F.3d
687, 692 (8th Cir. 2008). The balancing test considers “the reason for
noncompliance, the surprise and prejudice to the opposing party, the extent to
which allowing the information or testimony would disrupt the order and
efficiency of the trial, and the importance of the information or testimony.” Id.
Whether defendants’ untimely disclosure of the Tjeerdsma
emails and the Summers Affidavit documents was
Defendants argue that they failed to disclose the Tjeerdsma emails and
Summers Affidavit documents in a timely manner because they did not know
the emails existed. Docket 122 at 2. To determine whether a party’s untimely
disclosure is justified, the court evaluates the availability of the evidence, the
party’s knowledge of the relevancy of the evidence, and whether the party ever
moved the court for additional time to gather the evidence. See Trost, 162 F.3d
at 1008; Wegener, 527 F.3d at 692-93; Carmondy v. Kan. City Bd. of Police
Comm’rs, 713 F.3d 401, 405 (8th Cir. 2013).
In Transclean Corp. v. Bridgewood Services, Inc., 101 F.Supp.2d 788, 795
(D. Minn. 2000), the defendant produced an untimely supplemental expert
report. The defendant argued that the untimeliness of the report was
substantially justified because the supplemental report responded to a later
filed affidavit that “created a brand new theory and explanation from anything
set forth previously.” Id. at 796. The district court found that the untimeliness
of the supplemental report was not justified because the defendant had the
opportunity to discover the “brand new theory” when it deposed the affiant. Id.
The defendant further argued that the affiant was not forthcoming during his
deposition but failed to point to a question that, if answered, would have led
the defendant to the “brand new theory.” Id. The defendant simply did not ask
the relevant questions at the deposition. Id.
Similarly, in Wegener the plaintiff produced an untimely supplemental
expert report and argued that it was substantially justified because it was in
response to the defense’s expert report. Wegener, 527 F.3d at 692. But the
court reasoned that the plaintiff’s expert report was “based on hospital records
that were easily discoverable” and “patently relevant to [the plaintiff’s] case”
and which had been subpoenaed by defense counsel five months before the
disclosure deadline. Id. at 693. Thus, the plaintiff’s lack of due diligence in
reviewing relevant discovery did not substantially justify the untimely
Here, defendants argue that their untimely disclosure of the relevant
documents is substantially justified because they did not know about the
documents prior to their disclosure. But the Tjeerdsma emails were sent by
Tjeerdsma to DOC counsel on August 26, 2014. Docket 115-10 at 2.
Defendants produced one of the emails on July 25, 2017, and did not produce
the rest of the emails until August 17, 2017. Thus, defendants’ untimely
disclosure of the Tjeerdsma emails is not substantially justified because DOC
counsel knew of and maintained possession of the emails for nearly three years
before disclosing them.
As to the Summers Affidavit documents, the documents are responsive to
the interrogatories and requests for production that were sent by Scheetz in
January 2017 and should have been produced at that time. Similar to the
situations in Transclean and Wegener, the discovery was readily available in
January when Scheetz served his interrogatories, and the defendants knew
that emails between prison officials regarding Scheetz could be relevant to this
litigation. Defendants simply failed in their due diligence in responding the
Scheetz’s discovery requests. Also, defendants do not provide any explanation
as to why the Administrative Detention Order (Docket 111-7) was not produced
until August 17, 2017. Thus, the court finds that defendants failed to show a
substantial justification for the untimely disclosure of the Summers Affidavit
Whether defendants’ untimely disclosure is harmless
Defendants argue that Scheetz was not prejudiced by the late disclosure
of the documents because he relies on them in his response 4 to defendants’
motion for summary judgment and did not object to the late disclosure at the
time they were disclosed. Docket. 122 at 8. When considering whether a failure
to disclose was harmless, the court considers “the surprise and prejudice to the
opposing party, the extent to which allowing the information or testimony
would disrupt the order and efficiency of trial, and the importance of the
information.” Wegener, 527 F.3d at 692.
The court finds that failure to disclose in this case is not harmless
because Scheetz was unable to depose the defendants regarding the
information contained in the documents, the discovery deadline has passed,
and the trial date is currently less than one month away. Summers relies on
many of the emails in his affidavit in support of his renewed motion for
Defendants rely on the untimely disclosed documents in their second motion
for summary judgment, so Scheetz had to address the documents in his
response to the second motion for summary judgment. Also, Scheetz now
objects to the late disclosure of the documents by filing this motion to strike.
summary judgment, but Scheetz was unable to depose Summers about the
very emails he now so heavily relies on. Further, some of the emails contradict
prior sworn testimony. For example, a July 12, 2012 email seems to contradict
Summers’ prior sworn testimony that Special Security Staff at the SDSP were
not aware of the contraband investigation involving Scheetz and a correctional
officer. See Docket 75-1 ¶¶ 24-25; Docket 115-10 at 4. Because the discovery
deadline has passed and the trial date is quickly approaching, plaintiff would
not have the opportunity to further depose the defendants about these
documents without continuing the trial and reopening discovery. Thus, the
failure to disclose is not harmless.
Defendants failure to designate a 30(b)(6) witness
Under Federal Rule of Civil Procedure 30(b)(6) “a party may name . . . a
governmental agency . . . and must describe with reasonable particularity the
matters for examination.” Fed. R. Civ. P. 30(b)(6). The agency must then
designate one or more persons to then “testify about information known or
reasonably available to the organization.” Id. “[T]he effectiveness of the Rule
bears heavily upon the parties’ reciprocal obligations.” Prokosch v. Catalina
Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000). “Thus, the requesting party
must reasonably particularize the subjects about which it wishes to inquire,
and the responding party ‘is obligated to produce a deponent who has been
suitably prepared to respond to questioning within the scope of inquiry.’ ”
Dwelly v. Yamaha Motor Corp., 214 F.R.D. 537, 540 (D. Minn. 2003) (quoting
Prokosch, 193 F.R.D. at 638)).
In response to Scheetz’s subpoena for a Rule 30(b)(6) deposition to the
DOC, the DOC designated Kim Edson and Jennifer Dreiske. Docket 115-5 at 2;
Docket 115-14. Because defendants have not asserted that Scheetz did not
reasonably particularize the subjects he requested, the defendants were
required to produce a deponent to testify to the identified subject areas.
Scheetz argues that neither Edson nor Dreiske were unable to testify to the
DOC’s efforts in searching for responsive information to outstanding discovery
requests which was contained in subjects 6-8 in the subpoena (Docket 115-10
at 6-7), and instead, the DOC only provided an affidavit from Richard Williams
that described the DOC’s efforts in searching for responsive information.
Docket 114 at 13. Defendants do not provide a response to Scheetz’s argument.
Rule 30(b)(6) requires that the responding party produce a deponent. Here,
defendants provided an affidavit that addressed topics 6-8, but neither Edson
nor Dreiske was prepared to testify at their depositions on the topics. Thus,
defendants failed to comply with Scheetz’s Rule 30(b)(6) subpoena.
Under Rule 37(c)(1), exclusion of “material that should have been
provided in discovery responses” is automatic. 8B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2289.1 (3d ed. 1998)(citing to
146 Federal Rules Decisions 401 at 691-92). “But the courts have discretion in
general about whether and how to impose sanctions under Rule 37.” Id. Under
Rule 30(d)(2), “[t]he court may impose an appropriate sanction—including the
reasonable expenses and attorney’s fees incurred by any party—on a person
who impedes, delays, or frustrates the fair examination of the deponent.” Fed.
R. Civ. P. 30(d)(2).
At this time, the court will grant Scheetz’s motion to strike to the extent
that the court will not consider Summers’ affidavit and supporting documents
(Docket 111) in its decision on defendants’ second motion for summary
judgment. The court will reserve ruling on an adverse jury instruction, the
exclusion of evidence at trial, and attorney’s fees until the pretrial conference
currently scheduled for Monday, December 11, 2017.
Thus, it is
ORDERED that plaintiff’s motion to strike (Docket 113) is GRANTED IN
PART. The court will not consider the affidavit of Hunter Summers (Docket 111)
and all included attachments in its ruling on defendants’ second motion for
summary judgment (Docket 109).
DATED November 21, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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