Mary Kay Inc v. Weber et al

Filing 48

Memorandum Order. In a joint status report filed on December 22, 2008, plaintiff asks the court to compel defendants to identify the names and contact information for certain third-party witnesses revealed during a recent mediation session and to produce emails, correspondence, and statements between defendants and those witnesses. Defendants shall comply with this order by January 16, 2009. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 12/29/08) (lmp)

IN THE UNITED STATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS D A L L A S DIVISION M A R Y KAY INC. Plaintiff, VS. A M Y L. WEBER,ET AL.
Defendants.

N O . 3-08-CV-0776-G

MEMORANDUM

ORDER

I n a joint status report filed on December22, 2008, plaintiff asks the court to compel defendantsto identiff the namesand contact information for certain third-party witnessesrevealed between and and to produceemails,correspondence, statements d u r i n g a recentmediationsession defendantsand those witnesses. Defendantscounter that the information requestedby plaintiff is protectedfrom disclosureunder the Texas ADR statuteand constitutesattorneywork product. The issueshave been fully briefed by the parties and this matter is ripe for determination. T h e applicability of the TexasADR statuteis a "red herring" in this case. By its terms,the protects"communication[s] relatingto the subjectmatterof any civil or criminal T e x a sADR statute d i s p u t emadeby a participantin an alternativedisputeresolutionprocedure[.]" Tnx. Ctv. Pnec. & Plaintiffisnotseekingtouse communicationsrevealedduring R s v t . C o p E A N N . $ 15a.073(a). mediation against defendants. Rather, plaintiff only wants defendants to disclose the names, togetherwith a brief description and numbersof certainthird-partywitnesses, a d d r e s s e s , telephone o f the discoverableinformation known by each such witness--anobligation imposedunder Rule in 2 6 ( a X l X A ) . That defendants useddirect quotationsfrom someof thosewitnesses a PowerPoint

presentationat mediation does not excusedefendantsfrom complying with their Rule 26(aXlXA) in may be buried somewhere 819 o b l i g a t i o n s . Nor doesthe fact that the namesof thosewitnesses in p a g e sof documentsidentified by defendants their initial disclosures.r"The obviouspurposeof t h e disclosurerequirementof Rule 26(a)(1)(A) is to give the opposingparty information as to the so i d e n t i f i c a t i o n and location of personsknowledgeable that they can be contactedin connection w i t h the litigation[.]" Biltrite Corp. v. World Road Markings,[nc.,202 F.R.D. 359,362 (D. Mass. 2 0 0 1 ) . To that end: [ T h e parties] are expectedto disclosethe identity of those persons w h o may be used by them as witnessesor who, if their potential testimony were known, might reasonablybe expectedto be deposed o r called as a witnessby any of the other parties. Indicatingbriefly the generaltopics on which suchpersonshave information shouldnot b e burdensome,and will assist other parties in deciding which depositionswill actually be needed. *2 2008 WL 2874373at (D.Kan. Jul.22, L i p a r i v. {lS. Bancorp,N.1., No. 07-2146-CM-DJW, 2 0 0 8 ) , quoting Fed. R. Civ. P. 26(a), adv. comm. note (1993); see also City and County of San function "to F r a n c i s c ov. Tutor-Saliba Corp.,2l 8 F.R.D. 219,221 (N.D. Cal. 2003) (disclosures assistthe parties in focusing and prioritizing their organizationof discovery"). Requiring plaintiff of to ferret out the namesand addresses potential witnesseslisted in hundredsof pagesof documents must supplement their d o e snot further the purposeof Rule 26(aX1XA). Accordingly, defendants numbersof each and i n i t i a l disclosures provide the namesand,if known, the addresses telephone to information,along with the subjectsof that information,that i n d i v i d u a l likely to have discoverable SeeFno.R.Ctv.P.26(a)(1)(AXi).Although defendantsmayusetosupporttheirclaimsordefenses. d e f e n d a n t sneed not limit their supplementationto the third-party witnessesrevealed during

defendants specifically identifu 12 personslikely to have In their Rule 26(aXl)(A) initial disclosures, persons bateslabeledTOP 000 I -008I and identifiedin document discoverable information,andgenerallyreferto " [a]ll 0 1 3 5 - 0 8 7 3 . "(SeeJt. Stat.Rep.App., Exh. C).

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mediation, a position advocatedby plaintiff, the supplementation must include at least those witnesses. and an to P l a i n t i f f alsoseeks orderrequiringdefendants produceanyemails,correspondence, statementsbetween defendantsand the third-party witnesses. To the extent such documentsexist Nos. 3, 6, l7 & 20, they must be produced,subjectto the protective to a n d are responsive Request basedon work o r d e r previously enteredin this case. Any objectionsto thesedocumentrequests product are waived by defendants'failure to assert the objection in a timely manner. Because No. 3 1 on the grounds ofwork product,that objectionremains to defendants timely objected Request p e n d i n g . However, for eachdocumentresponsive Request to No. 3l that hasbeenwithheld from p r o d u c t i o non the groundsof work product,defendants must provide plaintiff with a privilege log containing the following information: l. 2. 3. 4. 5. the dateof eachdocument; the type and length of each document; the authorand recipientof eachdocument; the generalsubjectmatterof eachdocument; the privilege, immunity, or exemption assertedfor each document; and an explanation as to why the privilege, immunity, or e x e m p t i o n is applicable with enough specificity to allow plaintiff to determine whether to object to the privilege, i m m u n i t y , or exemptionasserted.

6.

WL 446025at *1 (E.D. Resources Co.,No. 1:05-CV-530,2007 S e ePYR EnergyCorp. v. Samson T e x . Feb.7,2007). D e f e n d a n t sshall comply with this order by January 16.2009. S O ORDERED.

29. DATED: December 2008.

S T A T E SMAGISTRATE JUDGE