Harris v. Advance America Cash Advance Centers, Inc.

288 F.R.D. 170, 2012 WL 6085266, 2012 U.S. Dist. LEXIS 173081
CourtDistrict Court, S.D. Ohio
DecidedDecember 6, 2012
DocketNo. 1:11-cv-179
StatusPublished
Cited by12 cases

This text of 288 F.R.D. 170 (Harris v. Advance America Cash Advance Centers, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. Advance America Cash Advance Centers, Inc., 288 F.R.D. 170, 2012 WL 6085266, 2012 U.S. Dist. LEXIS 173081 (S.D. Ohio 2012).

Opinion

ORDER

KAREN L. LITKOVITZ, United States Magistrate Judge.

Plaintiff Franklin D. Harris, proceeding pro se, brings this action against defendant [171]*171Advance America Cash Advance Centers, Inc. (Advance America) alleging claims of race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs amended complaint alleges that from July 9, 2008 through May 25, 2010, defendant denied his applications for employment for 15 open job positions as a Center Manager, Assistant Manager, and Customer Service Representative. Plaintiff also alleges that defendant retaliated against him for filing charges with the Equal Employment Opportunity Commission. This matter is before the Court on plaintiffs motion to compel discovery (Doc. 43), defendant’s memorandum in opposition (Doc. 44), and plaintiffs reply memorandum. (Doc. 45).

The undersigned held three separate telephone discovery conferences in this matter in an attempt to informally resolve the pending discovery disputes. (Docs. 35, 39, 42). When the parties and the Court were unable to informally resolve the issues, the Court granted plaintiff leave to file a motion to compel. The parties have briefed the discovery issues and the motion is ripe for resolution. The Court has carefully reviewed the parties’ briefs and will address each of plaintiffs requests in the order presented by plaintiff in his motion to compel.

1. The 2012 acquisition of Advance America by Grupo Elektra

Information about the 2012 acquisition of Advance America by Grupo Elektra is not relevant to plaintiffs race discrimination or retaliation claims in this case. Nevertheless, defendant is under a continuing obligation to disclose and update any changes to its corporate affiliations/financial interest statement. See Doc. 12. Defendant has advised the Court that it will submit an amended corporate disclosure statement in this matter. Defendant is granted 30 days from the date of this Order to submit an amended corporate disclosure statement.

2. Deficiencies in initial and supplemental Rule 26(a)(1) disclosures

Rule 26(a)(1) requires a party, without awaiting a discovery request, to provide to the other party 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. Fed.R.Civ.P. 26(a)(1)(A)(i). Plaintiff alleges that defendant failed to identify the names and addresses of the persons who were hired into the positions for which he applied or the District Director Officers and hiring managers who would have relevant discoverable evidence. Defendant contends it made the required identification of individuals based on the company’s own conclusion about which individuals had such information.

Rule 26(a)(1)(A)(i) does not require defendant Advance America to initially disclose the names of all individuals who have discoverable information, but only those individuals who defendant may use to support its defenses. The distinct purpose of the initial disclosure is to alert the opponent to the existence of a witness whose testimony may be helpful to the disclosing party. See El Camino Resources, Ltd. v. Huntington Nat. Bank, No. 1:07-cv-598, 2009 WL 1228680, at *3 (W.D.Mich. April 30, 2009) (citing 8 Charles Alan Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice & Procedure § 2053 (Supp. 2009)). The Court is not persuaded that defendant’s failure to identify the individuals named by plaintiff violates defendant’s initial disclosure obligations. The motion to compel is denied as to defendant’s Rule 26(a)(1) disclosures.

The Court notes that Rule 26(a) disclosures must be supplemented or corrected “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect____” Fed. R.Civ.P. 26(e)(1)(A). If a party fails to provide information or identify a witness under Rule 26(a) or 26(e), that party “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or was harmless.” Fed.R.Civ.P. 37(e)(1). The Court reminds both plaintiff and defendant of their continuing obligations under Rule 26. The Court is without sufficient information and makes no ruling at this [172]*172time that defendant has failed in its obligation under Rule 26(e)(1)(A) to supplement its initial disclosures.

3. Defendant’s obligations after the first telephone discovery conference on March 20, 2012

One of the issues raised at the March 20, 2012 discovery conference was plaintiffs request for discovery relating to the individuals hired in the Center Manager, Assistant Manager, and Customer Service Representative positions with Advance America between September 18, 2009 and May 25, 2010. Plaintiff asserted he requested but did not receive full discovery, including the job applications, the “89 Question Test,” the screening test, race, date of original hire, and position selected for each of the individuals ultimately hired for the jobs for which plaintiff applied. Plaintiff states that defendant “promised” to give him this information at the conference and by failing to do so broke its promise and violated the Court’s Order of March 20, 2012.

Counsel for defendant asserts that in extrajudicial discussions with plaintiff earlier this year, he offered to produce the demographic information (i.e., the race of the individuals) that plaintiff was seeking for the various individuals who got the jobs for which plaintiff applied at Advance America even though plaintiff did not properly request the information. Defendant states it made this offer in an attempt to resolve plaintiffs discovery-related objections but plaintiff rejected the offer (see Doc. 33 and Ex. A attached thereto), stating he instead wished to pursue the matter by filing a discovery motion with the Court. Defendant disputes plaintiffs assertion that following the conference with the Court, there was an agreement for Advance America to provide this demographic information to plaintiff.

At the telephone conference with the Court, defendant reiterated its willingness to provide plaintiff with the race of the individuals hired for the positions for which plaintiff applied. The Court’s Order following the conference reflects this and states, “Defendant represents that it is willing to provide this information to plaintiff and has so advised plaintiff.” (Doc. 35). Plaintiff construes this statement as an order by the Court to defendant to provide the demographic information plaintiff seeks. While not specifically ordered by the Court, it was the Court’s understanding that defendant would be voluntarily providing this information to plaintiff without requiring a formal discovery request from plaintiff. Plaintiffs confusion over this matter is understandable and to put this issue to rest, the Court now orders defendant to provide to plaintiff the demographic information (i.e.,

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288 F.R.D. 170, 2012 WL 6085266, 2012 U.S. Dist. LEXIS 173081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-advance-america-cash-advance-centers-inc-ohsd-2012.