Hutchinson v. Global Experience Specialists Inc

• Court: District Court, D. Nevada
• Decided: August 13, 2019
• Docket: 2:16-cv-02397
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 * * * 3 STEPHANIE HUTCHINSON, Case No. 2:16-CV-02397-MMD-EJY 4 Plaintiff, 5 ORDER ON PLAINTIFF’S MOTION TO v. EXCLUDE AND FOR ATTORNEYS’ 6 FEES GLOBAL EXPERIENCE SPECIALISTS 7 INC.,

8 Defendants.

9 10 This matter is before the Court on Plaintiff’s Motion to Exclude and For Attorneys’ Fees 11 Pursuant to Fed. R. Civ. P. 37 (ECF No. 58). After considering Plaintiff’s Motion, Defendant’s 12 Opposition to Motion to Exclude and For Attorneys’ Fees (ECF No. 59), and Plaintiff’s Reply in 13 Support of Plaintiff’s Motion to Exclude and For Attorneys’ Fees (ECF No. 60), the Court finds as 14 follows. 15 BACKGROUND 16 As stated in the Joint Pretrial Order (the “JPO”) filed by the parties on July 12, 2019 (ECF 17 No. 57), the above captioned matter is an action for relief under the Family Medical Leave Act 18 (“FMLA”). It is uncontested that Plaintiff, Stephanie Hutchinson, worked for Defendant Global 19 Experience Specialists, Inc. (“GES”) as a Supervisor in the national service center until she was 20 terminated on September 25, 2014. According to the JPO, at the time Plaintiff was terminated, she 21 was on intermittent FMLA leave because of an eye condition. Plaintiff claims that her FMLA was 22 a factor in her termination. GES contends the termination had nothing to do with the FMLA, and 23 that she was fired after a series of incidents. 24 The uncontested facts, as established by the record, show that the Discovery Plan and 25 Scheduling Order was filed on November 9, 2016, with an original discovery deadline of April 14, 26 2017 (ECF No. 8). Thereafter, there were four extensions of the discovery deadlines with the last 27 1 extension ending discovery on February 16, 2018 (ECF No. 19). Dispositive Motions were 2 calendared as due on March 19, 2018. Id. On December 3, 2018, the Court granted in part and 3 denied in part Defendant GES’ Motion for Summary Judgment (ECF No. 38). 4 Following denial of GES’ dispositive motion as to Plaintiff’s FMLA claim, the parties 5 engaged in a private settlement before the Judicial Arbitration and Mediation Service, which did 6 not result in settlement. A court ordered settlement conference, held on January 18, 2019, also did 7 not result in settlement. However, it is uncontested that during this settlement conference, in-house 8 counsel for Defendant recalled, suddenly, that Defendant was in possession of documents 9 pertaining to Plaintiff’s attendance at work on a critical date in question—September 10, 2014. 10 This recollection occurred after approximately 15 months of discovery, and 11 months after the 11 close of discovery. GES informed the Court and Plaintiff of the existence of these documents 12 immediately and produced them on January 23, 2019, as its Third Supplement to Defendant’s Initial 13 Disclosures. The documents produced in January 2019 (Bates Nos. D000366-D000374) are 14 responsive to Plaintiff’s Request to Produce No. 32 first propounded on Defendant by mail on 15 September 18, 2017.1

16 1 Plaintiff’s Request to Produce No. 32 states:

17 REQUEST NO. 32: Produce all records showing the hours/times/dates Plaintiff worked for Defendant that are maintained by Defendant including income statements, pay checks, time 18 cards, daily attendance records, sign in/out sheets, clock in/clock out sheets, change of time keeping material, or similar documents that contain information showing the 19 hours/times/dates worked by Plaintiff for the period of September 29, 2013 to September 29, 2014. 20

In response, Defendant stated: 21

RESPONSE NO. 32: Defendant objects to this Request to the extent it seeks multiple 22 documents which provide the same basic information. Because Plaintiff was classified as an exempt employee, there is not believed to be documentation showing specific arrival 23 and departure times. The documents appended as D-000292-294 show the normal work days that Plaintiff did not work during the requested time period. 24

While Defendant suggests that the documents produced are not squarely within the documents requested, the 25 documents produced are clearly within the intent of the Request. Fed. R. Civ. P. 34 requires more than a literal reading of a request. Fed. R. Civ. P. 34 advisory committee’s note to 1946 amendment. Instead the 26 receiving party must consider the subject of inquiry and that to which it reasonably relates given the detail provided by the party propounding the request. See id. (“We see no reason why all such books, papers and 27 correspondence which related to the subject of inquiry, and were described with reasonable detail, should not 1 After several adequate meet and confer attempts, the parties were unable to agree on whether 2 the belatedly produced documents should be excluded or stricken. Plaintiff filed the instant Motion 3 to Exclude and For Attorney’s Fees on July 16, 2019. Defendant filed its Response on July 29, 4 2019, and Plaintiff filed a Reply on August 5, 2019. 5 Plaintiff moves to exclude the untimely disclosed “Card History” documents that Defendant 6 states purport to show when employees access “certain locked areas of GES . . .” and, therefore, by 7 default, also show when employees do “not access” such areas. Plaintiff contends these documents 8 should be excluded (stricken) because (1) they were produced in violation of Rule 26(a) and (e), 9 and (2) the failure to produce was not substantially justified and is not harmless. Defendant 10 contends that (1) Defense counsel was unaware of the existence of these documents until January 11 18, 2019, (2) the documents were promptly produced once identified, (3) a deposition of the 12 custodian of the Card History documents was offered as a cure for the late disclosure, and (4) the 13 belated disclosure was harmless. 14 DISCUSSION 15 As noted by this Court on several prior occasions, “[b]ecause of heavy caseloads, trial courts 16 enter scheduling orders ‘to establish deadlines to foster the efficient treatment and resolution of 17 cases.” Jackson v. American Family Mutual Insurance Co., No. 2:10-cv-01874-LRH-PAL, 2012 18 WL 845646 *3 (March 12, 2012, D. Nev) (citing Wong v. Regents of University of California, 410 19 F.3rd 1052, 1060 (9th Cir. 2005)). Attendant to this proposition is Fed. R. Civ. P. 26, which requires, 20 in pertinent part, that parties must, without waiting for discovery requests, produce to opposing 21 parties “a copy—or a description by category and location—of all documents, electronically stored 22 information, and tangible things that the disclosing party has in its possession, custody, or control 23 and may use to support its claims or defenses, unless the use would be solely for impeachment…” 24 Fed. R. Civ. P. 26(a)(1)(A)(ii). Although Rule 26 does not mandate when supplements to the initial 25 disclosures must be made, it is clear that supplements must be made “in a timely manner” and:

26 if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has 27 not otherwise been made known to the other parties during the discovery before the discovery deadline, only that they must be made “in a timely 1 manner.” Dayton Valley Investors, LLC v. Union Pacific R. Co ., 2010 WL 3829219 (D. Nev. 2010) (“The rule does not limit the time for 2 supplementation of prior disclosures to the discovery period.”).

3 Oskel v. Pardee, No. 2:11-cv-154-GMN-NJK, 2013 WL 1315736 *1 (March 28, 2013, D. Nev.). 4 The Ninth Circuit grants “wide latitude” to the district court’s discretion to issue sanctions 5 under Rule 37(c)(1). Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 6 2001). Rule 37(c) provides a range of sanctions, from the most harsh (total exclusion and dismissal 7 of the case) to more moderate (limited exclusion and attorney’s fees), to give the district court 8 latitude in matching the degree of noncompliance with the purpose of Rule 26’s mandatory 9 disclosure requirements. Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de 10 Puerto Rico, 248 F.3d 29, 34 (1st Cir. 2001). When a party fails to comply with a scheduling order 11 and its deadlines, “severe sanctions” and the “exclusion of evidence” may be proper. Jackson, 2012 12 WL 845646 *3. Further, “[t]he Ninth Circuit has recognized that disruption of the court’s discovery 13 plan and scheduling order is not harmless.” Id. (internal citations and quotations removed). Fed. 14 R. Civ. P. 37(c)(1) states: “If a party fails to provide information or identify a witness as required 15 by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence 16 on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” 17 In contrast, however, as explained in Jackson v. United Artists Theatre Circuit, Inc., 278 18 F.R.D. 586, 594 (D. Nev. 2011), Rule 37(c)(1):

19 does not require the court, in all instances, to exclude evidence as a sanction for a late disclosure that is neither justified nor harmless.” See Design 20 Strategy, Inc. v. Davis, 469 F.3d at 296, 298 [(2nd Cir. 2006)], and Allstate Ins. Co. v. Nassiri, 2011 WL 2977127, *5–6 (D.Nev.2011). In Wendt v. 21 Host International, Inc., 125 F.3d 806, 814 (9th Cir.1997), the Ninth Circuit identified several factors that the district court may consider in deciding 22 whether to impose Rule 37(c)(1)‘s exclusion sanction. Those factors include (1) the public’s interest in expeditious resolution of litigation, (2) 23 the court’s need to manage its docket, (3) the risk of prejudice to the other parties, (4) the public policy favoring disposition of cases on their merits, 24 and (5) the availability of less drastic sanctions. Although a finding of willfulness or bad faith is not required in order to impose the evidence 25 preclusion sanction, willfulness or bad faith is clearly a factor in deciding the appropriate level of sanction. [Additional citations omitted.] 26 Here, neither party argues the factors established in Wendt. Rather, both parties focus solely 27 on the terms appearing in Rule 37. Defendant also does not argue substantial justification for its 1 failure to discover and disclose the Card History at any time prior to January 2019. Rather, 2 Defendant argues only that the late discovery is harmless. Plaintiff argues both a lack of substantial 3 justification and that it will suffer harm if the documents it seeks to exclude are not stricken. 4 In support of its position, Plaintiff argues that, in deposition, national service center 5 manager, Shelia Glenn, disingenuously “testified that there was no documentation for the tracking 6 of hours worked in regard to Plaintiff’s former position with Defendant.”2 Plaintiff also argues that 7 because the Card History was “readily producible” in response to Plaintiff’s Request to Produce 8 No. 32, and that the identification of the documents were the result of an “epiphany” (a term also 9 used by Defendant), Defendant fails to meet its burden of showing substantial justification or 10 harmlessness. 11 Defendant argues—because “GES’ position that Hutchinson did not come to work on 12 September 10 is no surprise” to Plaintiff—no harm was done by the belated disclosure. Defendant 13 also points to a produced email stating that Plaintiff called in to state she would not be in that day 14 and cites to deposition testimony of “Ms. Bell and documentation showing that Hutchinson took a 15 full vacation day on September 10.” Finally, Defendant argues that the untimely produced Card 16 History documents favor Defendant and, therefore, there would have been no reason to withhold 17 these documents during discovery. 18 The existence of the Card History clearly came as a surprise to both parties given they agreed 19 that Defendant’s in-house counsel had an “epiphany” during the Court-sponsored settlement 20 conference. Moreover, there is no doubt that (1) the documents address a key fact in the case: 21 Defendant’s position regarding whether Plaintiff was at work on September 10, 2014, and (2) the 22 documents were not produced at any time during the discovery period (extended four times). In 23 fact, it was 11 months after the close of discovery, and months after the Motion for Summary 24 Judgment was decided that Defendant’s in-house counsel epiphany occurred. 25 26

2 The Card History does not track hours worked. Rather, it tracks the access (or lack of access) to 27 certain portions of Defendant’s facility. Hence, the Court does not find Ms. Glenn’s testimony disingenuous 1 As to the factors cited in Jackson v. United Artists Theatre Circuit, Inc., as well as those 2 discussed in Silvagni v. Wal-Mart Store, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017), the public’s 3 interest in expeditious resolution of litigation and the court’s need to manage its docket (perhaps 4 said succinctly as preventing disruption of the trial), as well as the risk of prejudice to Plaintiff all 5 weigh in favor of excluding the Card History documents. That is, to cure any prejudice to Plaintiff 6 arising from Defendant’s late disclosure of the Card History documents, Defendant offers and 7 argues a deposition of a custodian of records is sufficient. However, to cure the prejudice arising 8 from the late disclosure of a type of document never mentioned, let alone disclosed at any time 9 during the discovery period, it would seem Plaintiff might want to question Plaintiff’s supervisor 10 and other witnesses about these documents, and the card access system generally. Thus, a single 11 custodian deposition would not likely cure the prejudice. Thus, a cure to Defendant’s late disclosure 12 could require reopening discovery, which at this juncture, is the very antithesis of the Court’s ability 13 to control its docket and contrary to an expeditious resolution of the litigation.3 14 Given that Defendant is not denied an ability to mount a meaningful defense to Plaintiff’s 15 claims in the absence of the Card History through introduction of the email and testimony identified 16 in the Response (ECF No. 59), public policy in favor of disposition on the merits of the case is not 17 undermined by exclusion of the Card History documents. 18 In all, despite no trial disruption or bad faith caused or intended by Defendant, the Court 19 does not find the extremely belated disclosure of the Card History was harmless, and some sanction 20 is appropriate. Plaintiff was denied the ability to question witnesses regarding the existence of the 21 Card History, and who and how the History is kept. Plaintiff was also denied the opportunity to 22 question the accuracy of the records through discovery. Given that Defendant is not denied an 23 ability to mount a meaningful defense to Plaintiff’s claims, and the burden in this instance was on 24 25 26 27 1 Defendant as “the party facing discovery sanctions under Rule 37(c)(1) to prove harmlessness[,]” 2 (Jackson, 2012WL 845646 *3 citing Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 3 2008)), the Court finds Defendant has not met its burden.4 4 With respect to Plaintiff’s request for attorney’s fees, this request is denied as the sanction 5 described above is sufficient and appropriate to the totality of the circumstances. 6 For the reasons stated, IT IS HEREBY ORDER THAT: 7 Plaintiff’s Motion to Exclude and for Attorney’s Fees Pursuant to FRCP 37 is GRANTED 8 in part and DENIED in part. Plaintiff’s Motion is GRANTED to the extent that Defendant’s 9 untimely production of the Card History documents shall be excluded from use by Defendant in its 10 case-in-chief. Plaintiff’s Motion is DENIED as to Plaintiff’s request for attorney’s fees. 11 DATED THIS 13th day of August, 2019. 12

13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27