Booker v. Johnsonville Sausage LLC
Filing
24
ORDER signed by Judge J.P. Stadtmueller on 5/8/2017 GRANTING in part and DENYING in part 20 Defendant's Motion to Compel and for Sanctions. Plaintiff ORDERED to produce to Defendant, within 5 days, the audio recording and documents pertaining to his post-termination income. See Order. (cc: all counsel, via mail to Delvaris Booker) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DELVARIS BOOKER,
Plaintiff,
v.
JOHNSONVILLE SAUSAGE LLC,
Case No. 16‐CV‐1047‐JPS
ORDER
Defendant.
In this action, Plaintiff, proceeding pro se, alleges that his former
employer, Johnsonville Sausage LLC (“Johnsonville”), discriminated
against him because of his race and retaliated against him for engaging in
protected activity. (Docket #1). On April 11, 2017, Johnsonville filed a
motion to compel Plaintiff to supplement his responses to certain of their
discovery requests. (Docket #20). Plaintiff did not respond to the motion,
so the Court treats it as unopposed.
In its motion, Johnsonville seeks supplemental responses as to two
of its discovery requests. (Docket #20 at 2). First, Plaintiff has referenced in
one of his discovery responses that he possesses an audio recording he
surreptitiously made of a meeting between himself and his supervisors. Id.
at 2–3. Despite Johnsonville’s request that he produce the recording, he
has refused without providing any reason for withholding it. Id. at 3.
Second, Plaintiff ignored Johnsonville’s request to produce documents
relevant to any income he has received since his separation from the
company. Id. During the parties’ meet‐and‐confer efforts, Plaintiff asserted
that although he did not have responsive materials for this request on the
date it was served, he now has relevant information. Id. Nevertheless, he
refuses to produce it. Id. In light of Plaintiff’s behavior, Johnsonville seeks
an order compelling him to produce these items and seeking an award of
its reasonable attorney’s fees and costs as a sanction. Id. at 3–4.
As to the first request, it is indisputable that Plaintiff must turn
over the audio recording and the documents establishing his post‐
termination income. Both are relevant to the subject matter of this action,
and Plaintiff has interposed no valid objection to their production. See Fed.
R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any non‐
privileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case[.]”). Indeed, Plaintiff has not even
responded to Johnsonville’s motion in order to suggest some reason why
the discovery sought is improper. See Civ. L. R. 7(d) (“Failure to file a
memorandum in opposition to a motion is sufficient cause for the Court to
grant the motion.”). Additionally, to the extent Plaintiff believes that he
need not produce responsive documents as they become available, he is
mistaken; Federal Rule of Civil Procedure 26(e) imposes on him a
continuing duty to supplement his discovery responses “in a timely
manner if [he] learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other parties
during the discovery process or in writing.” Id. 26(e)(1)(A); Remien v. EMC
Corp., No. 04 C 3727, 2008 WL 821887, at *4 (N.D. Ill. Mar. 26, 2008) (“[T]he
fact that the requested documents were not in existence at the time of the
original production is not an automatic ban to their production now.”)
Page 2 of 4
(citing Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 671 (7th Cir. 1996)). As a
result, the Court must order Plaintiff to comply with these discovery
requests. Plaintiff has five (5) days from the date of this Order to produce
these items, and no request for an extension of time will be entertained.
On the matter of sanctions, the Court declines to impose monetary
sanctions at this time. First, Johnsonville has submitted no evidence of the
attorney’s fees and costs it incurred, preventing the Court from
considering what a reasonable award should be. Second, while Plaintiff’s
conduct was unjustified and worthy of sanction, the Court is cognizant
that Plaintiff, as a pro se litigant, has limited resources, making a monetary
sanction especially harsh. See Fed. R. Civ. P. 37(a)(5)(A)(iii) (a court can
decline to award fees if circumstances make such an award unjust).
Nevertheless, the Court gives Plaintiff this warning: in light of the
clear discovery violations raised in this motion and in connection with
Plaintiff’s deposition, see (Docket #23), further discovery misconduct will
not be tolerated. If additional violations of the discovery rules are brought
to light, or if Plaintiff fails to comply with this Order, the Court will
dismiss this case as a sanction for his misconduct. See Fed. R. Civ. P.
37(b)(2); Maynard v. Nygren, 332 F.3d 462, 467–68 (7th Cir. 2003) (observing
that a district court may impose a sanction of dismissal if a party acts in
bad faith and lesser sanctions are not appropriate); Downs v. Westphal, 78
F.3d 1252, 1257 (7th Cir. 1996) (“[B]eing a pro se litigant does not give a
party unbridled license to disregard clearly communicated court orders. It
does not give the pro se litigant the discretion to choose which of the
court’s rules and orders it will follow, and which it will wilfully
disregard.”).
Page 3 of 4
Accordingly,
IT IS ORDERED that Defendant’s motion to compel and for
sanctions (Docket #20) be and the same is hereby GRANTED in part and
DENIED in part as stated herein; and
IT IS FURTHER ORDERED that Plaintiff will produce to
Defendant, no later than five (5) days from the date of this Order, the
audio recording and documents pertaining to his post‐termination income
as identified above. Failure to comply with this Order will result in
dismissal of this action without further notice.
Dated at Milwaukee, Wisconsin, this 8th day of May, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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