Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Walker v. Target Corp.

United States District Court, S.D. Mississippi, Eastern Division

June 7, 2017

DR. DEBRA L. WALKER, et al. PLAINTIFFS
v.
TARGET CORPORATION DEFENDANT

          ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         On May 17, 2017, Plaintiffs filed a Motion to Strike [102] Defendant's Motion for Summary Judgment [78] and Answer. Therein, Plaintiffs argue that Defendant intentionally failed to disclose the address and phone number of a witness identified in its initial disclosures - Nicholas Field, a former Target employee. Plaintiffs also argue that Defendant intentionally failed to disclose Field's affidavit taken in January 2017, which was attached as an exhibit to Defendant's Motion for Summary Judgment [78]. For the reasons below, the Court grants in part and denies in part Plaintiffs' Motion to Strike [102].

         A. Background

         In its initial disclosures of June 2016, Defendant identified Nicholas Field as a former employee likely to have discoverable information. See Exhibit 9 to Motion to Strike at 1, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. May 31, 2017), ECF No. 102-9. On July 11, 2016, Defendant's counsel provided Field's last known address and telephone number to Plaintiffs' counsel. See Exhibit A to Response at 22, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. May 31, 2017), ECF No. 113-1. The address was incomplete insofar as it was for a trailer park but did not include Field's lot number. The phone number was no longer in service.

         Using an online people-finder service, Plaintiffs' counsel learned that Field had lived at Lot 13 of the trailer park. See Exhibit 1 to Reply at 1, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. June 5, 2017), ECF No. 115-1. Plaintiffs' counsel knew this as early as August 2016, as demonstrated by his correspondence to Field. See Exhibit 4 to Motion at 1, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. May 17, 2017), ECF No. 102-4. Defendants' counsel represented in briefing that Field's trailer was relocated to Lot 10 several years ago. See Memorandum at 3 n. 2, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. May 31, 2017), ECF No. 114. But Field lived at the trailer park disclosed by Defendant from July 2013 through March 2017. Exhibit B to Response at 1, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. May 31, 2017), ECF No. 113-2.

         At some point between July 2016 and January 2017 - “several months into the discovery process” - Defendant's counsel located Field on Facebook and obtained his lot number and current phone number. See Exhibit A [113-1], at 2, 6. But Defendant did not timely supplement its disclosures to provide Field's lot number or current phone number. The Court can not determine from the record whether Defendant provided the lot number prior to filing its briefs on the subject motion, and Defendant did not disclose the phone number until May 17, 2017. See Id. at 5-6. Finally, Defendant never disclosed an affidavit it obtained from Field on January 26, 2017, or listed it in a privilege log. See Exhibit E to Motion for Summary Judgment, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. April 20, 2017), ECF No. 78-5.

         B. Disclosure Requirements

         Rule 26 provides that “a party must, without awaiting a discovery request, provide to the other parties . . . 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). The disclosing party must generally make these initial disclosures “at or within 14 days after the parties' Rule 26(f) conference . . . .” Fed.R.Civ.P. 26(a)(1)(C); see also L.U.Civ.R. 26(a)(1)(A). “A party must make its initial disclosures based on the information then reasonably available to it.” Fed.R.Civ.P. 26(a)(1)(E).

         Rule 34 permits a party to serve requests for the production of documents. Fed.R.Civ.P. 34(a)(1). “The party to whom the request is directed must respond in writing within 30 days after being served . . . .” Fed.R.Civ.P. 34(b)(2)(A). The responding party may object to requests for production, Fed.R.Civ.P. 34(b)(2)(C), but “[a] party withholding information claimed privileged or otherwise protected must submit a privilege log that contains” certain enumerated information about the withheld document. L.U.Civ.R. 26(e). “To withhold materials without such notices subjects the withholding party to sanctions under Fed.R.Civ.P. 37 . . . .” Id.

         “A party who has made a disclosure . . . or who has responded to a . . . request for production . . . must supplement or correct its disclosure or response . . . in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional corrective information has not otherwise been made known to the other parties during the discovery process or in writing . . . .” Fed. R. Civ. 26(e)(1). Local Rule 26 provides that a party must supplement “in no event later than the discovery deadline established by the case management order.” L.U.Civ.R. 26(a)(5).

         First, there is no legitimate dispute as to Defendant's failure to disclose Field's complete address and current phone number. Accordingly, Defendant violated Rule 26(e) by failing to supplement its initial disclosures with Field's lot number and current phone number.

         Defendant does not dispute that it failed to produce Field's affidavit in response to Plaintiffs' request for production of any written statements. Rather, Defendant contends that it was non-discoverable work product created by counsel in anticipation of trial. See Fed. R. Civ. P. 26(b)(3)(A). The Court disagrees, for the same reasons provided in Walker v. George Koch Sons, Inc., No. 2:07-CV-274-KS-MTP, 2008 U.S. Dist. LEXIS 81919, at *17-*19 (S.D.Miss. Sept. 18, 2008) (citing numerous authorities). Field's affidavit merely provides facts within his personal knowledge, and it does not reveal Defendant's counsel's “mental impressions or legal strategy.” Id. at *17. To the extent Defendant cited contrary authorities, the undersigned judge respectfully disagrees with them. Therefore, Defendant violated Rule 26(e) by failing to supplement its responses to Plaintiffs' requests for production, which specifically requested any “written or recorded statements” relevant to this case. See Exhibit 10 to Motion to Strike, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. May 17, 2017), ECF No. 102-10.

         Even if the affidavit were work product, Defendant was required to submit a privilege log” with certain information about the withheld document. L.U.Civ.R. 26(e). Defendant did not do so, and “[t]o withhold materials without such notices subjects the withholding party to sanctions under Fed.R.Civ.P. 37 . . . .” Id.

         C. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.