Summary
denying motion to strike since, even if exhibits were not provided timely, opposing counsel had received them at the time of the court's ruling and had not demonstrated prejudice
Summary of this case from Moore v. BASF Corp.Opinion
CIVIL ACTION NO. 06-8748, SECTION "F".
April 11, 2008
ORDER AND REASONS
Before the Court are two State Farm motions: (1) motion to strike plaintiffs' witnesses and exhibits at trial and for sanctions pursuant to FRCP 37; and (2) motion for leave to amend State Farm's witness and exhibit list. For the reasons that follow, the motion to strike is continued to April 28, 2008 on the papers, and the motion for leave to amend is GRANTED. If the plaintiffs or defendant, or both, request additional time to complete discovery, the Court will consider such requests when filed by timely motion.
As noted below, no later than April 17, 2008, plaintiffs' counsel must submit a written explanation under oath as to why discovery was not supplemented before submission of witness and exhibit lists. Counsel will perhaps wish to thoroughly familiarize themselves with 28 U.S.C. § 1927. See also Cambridge Toxicology Group, Inc. v. Exnicios, 495 F.3d 169 (5th Cir. 2007).
Background
This is an insurance dispute regarding hurricane damaged property. Pursuant to this Court's scheduling order issued July 19, 2007, the pretrial conference in this matter is set for May 7, 2008 and a jury trial is set for May 19, 2008. The scheduling order provides deadlines for discovery and exchange of expert reports, as well as witness and exhibit lists. Both parties filed timely witness and exhibit lists with the Court. But State Farm now contends that it inadvertently omitted one of its witnesses and exhibits from its lists filed with the Court and now seeks leave to amend their lists. Also, State Farm urges the Court to strike more than 20 witnesses and exhibits listed in the plaintiffs' witness and exhibit lists. State Farm insists that plaintiffs failed to disclose these witnesses and exhibits during the course of discovery, despite requests from State Farm and that many of the witnesses and exhibits are irrelevant to the Galloways' suit against State Farm.
I.
The Federal Rules impose obligations on the parties to a lawsuit to exchange initial disclosures and general discovery. Fed.R.Civ.P. 26. Implicit in the Rules is the duty of professionalism, of self-respect, and respect for our system of justice, and basic civility. The duty to exchange information is, as all well-know, ongoing; the parties are required to supplement or correct disclosures or discovery responses "if the party learns that the response is in some material respect 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." Fed.R.Civ.P. 26(e).
If the parties, through their counsel, fail to fulfill their obligations imposed by the Federal Rules, the Court may, will, and has, imposed appropriate sanctions. Federal Rule of Civil Procedure 37(c)(1) provides:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial . . . any witness or information not disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. . . .
A. Motion to Strike
State Farm contends that none of the more than 20 objectionable witnesses or exhibits were disclosed to State Farm during discovery, and that plaintiffs have therefore violated their obligation to supplement discovery responses. State Farm urges the Court to sanction the plaintiffs by either striking the witnesses and exhibits, or continuing the trial so that it has time to engage in further discovery on these witnesses and exhibits.
State Farm seeks to strike more than 20 witnesses and exhibits. In addition to moving to strike witnesses and exhibits because plaintiffs' counsel failed to disclose them during the discovery process, State Farm also requests that the Court strike many of the witnesses and exhibits on the ground that they are irrelevant to this case. It is, however, patently premature for the Court to consider relevancy as a basis for striking the proposed witnesses and exhibits. Accordingly, at this time, the Court addresses only State Farm's submissions regarding plaintiffs' failure to supplement their discovery responses.
When State Farm at times requested disclosure of these witnesses and exhibits during the course of discovery, plaintiffs' counsel objected to the request as premature and responded that plaintiffs would file their witness and exhibit lists in compliance with the Court's scheduling order (and then plaintiffs nevertheless listed some witnesses and exhibits notwithstanding their objections).
For example, State Farm requests the Court to strike a listed expert because he is an expert in another insurance case for another plaintiff from the same neighborhood, or the listed fact witness is a neighbor of Galloways', or is an adjuster that had nothing to do with the Galloways' claim.
State Farm objects to the listing of various claims files for plaintiffs in other State Farm lawsuits; it says the Galloways have not provided those files to it and that claims files as to other properties are irrelevant. To the extent the plaintiffs have not provided the documents listed in their exhibit list, plaintiffs' counsel suggests that State Farm has access to these documents.
It is undisputed that plaintiffs have failed to supplement their disclosures and discovery responses. State Farm provides the Court with correspondence between its counsel and plaintiffs' counsel. For example, in January 2007, State Farm requested that plaintiffs identify all fact and expert witnesses they planned to call at trial, and to identify each exhibit the plaintiffs planned to introduce at trial. On May 7, 2007, the plaintiffs answered the interrogatories by objecting to the interrogatories as premature and stating that plaintiffs would file a witness and exhibit list as provided by the Court's scheduling order. Nonetheless, without waiving the objection, the plaintiffs listed themselves and unnamed State Farm adjusters as potential witnesses, as well as listing various exhibits described generically, such as "all documents produced in future discovery." Also, on December 7, 2007, counsel for State Farm wrote the Galloways' counsel to confirm deposition schedules and also noted that (1) the plaintiffs had only identified William Foster (engineer) and Steve Hitchcock (public adjuster) as experts; and (2) plaintiffs had said they had eyewitnesses to and videos of the storm but no names of witnesses or videos had been provided to State Farm.
The plaintiffs vaguely suggest that the objectionable witnesses and exhibits were listed as a result of new information, that their "identification of these witnesses and documents occurred within a short period of time after the connection between the cases could be made." And the plaintiffs insist that their witness and exhibit lists were timely filed with the Court, which left State Farm with "over six (6) weeks prior to the discovery deadline." Also, the plaintiffs assert that State Farm cannot claim surprise or prejudice and that, in any event, State Farm has waived any objections because it has had "complete and unfettered access to this information long before the Galloways and their counsel."
The plaintiffs' counsel has included expert witnesses and exhibits regarding other hurricane claims in the same neighborhood. State Farm objects to such evidence based on relevance. The plaintiffs assert that the close proximity of these neighboring houses shows that the Galloways' property was destroyed by a tornado and that State Farm should not be permitted to isolate claims and to "bury [this information] so that the commonality of these claims would be hidden."
The Court takes very seriously an assertion in this case that counsel has purposefully engaged in vexatious litigation tactics in an attempt to gain an unfair advantage at trial. For this reason, IT IS ORDERED: that plaintiffs' counsel submit, no later than April 17, 2008 a written explanation under oath as to why discovery was not supplemented before submission of witness and exhibit lists. Plaintiffs' counsel's explanation should be accompanied by exhibits, where appropriate, advising the Court when plaintiffs' counsel first had access to information sufficient to inform him of the identity of the witnesses and exhibits objected to by State Farm. IT IS FURTHER ORDERED: that State Farm's motion to strike is hereby continued to April 23, 2008 on the papers.
B. Motion to Amend
On March 7, 2008, State Farm filed its witness and exhibit lists. On March 25, State Farm filed this motion to amend, requesting leave to add as a witness Alvin Wells, a claims representative that adjusted the plaintiffs' flood claim, and to add as an exhibit a copy of the claims file from Harleysville Mutual Insurance Company regarding plaintiffs' flood claim. (State Farm notes that it inadvertently failed to include this witness and exhibit but that it had provided the record to plaintiffs' counsel more than two months ago.) Plaintiffs' counsel objects to State Farm "seek[ing] to add an out of state witness one week before the discovery deadline expires which makes deposing the witness an impossibility."
Plaintiffs' counsel offers a "compromise", suggesting that the Court briefly extend the discovery deadline to allow for this discovery and any discovery State Farm cannot accomplish because of plaintiffs' "new witnesses and exhibits" in exchange for State Farm dropping its motion to strike witnesses and exhibits. The Court suggests that plaintiffs' counsel speak directly to counsel for State Farm for any compromises it is willing to make.
State Farm's motion to amend its witness and exhibit list is GRANTED. Counsel does not credibly assert surprise or prejudice from such amendment; indeed, it seems clear that the request is reasonable, as State Farm suggests, "[t]he filing of the flood claim and its adjustment by Harleysville is a matter which Plaintiffs are intimately familiar." An argument plaintiffs' counsel has also made at times.
To reiterate, IT IS ORDERED: that, no later than April 17, 2008, plaintiffs' counsel shall submit under oath a written explanation as to why discovery was not supplemented before submission of witness and exhibit lists. Plaintiffs' counsel's explanation should be accompanied by appropriate exhibits, advising the Court when plaintiffs' counsel first had access to information sufficient to inform him of the identity of the witnesses and exhibits objected to by State Farm. IT IS FURTHER ORDERED: that State Farm's motion to strike is hereby continued to April 23, 2008 on the papers. IT IS FURTHER ORDERED: that State Farm's motion to amend is GRANTED.