Opinion
Nos. 98-2777 D, 98-2968 D, 00-2245 D
April 12, 2002
Before the court are two motions: (1) the motion of the defendant Quality Analytical Services, Inc. to compel the plaintiffs, Signature Combs, Inc. and others, to make initial Rule 26(a)(1) disclosures and also to establish a deadline for the filing of responsive pleadings by the defendants; and (2) the motion of defendant Mueller Copper Tube Products, Inc. for sanctions pursuant to Rule 37(c)(1) prohibiting the plaintiffs from introducing as evidence information not disclosed in compliance with Rule 26(a)(1), or, in the alternative, striking the plaintiffs' claims against Mueller. Mueller also seeks its fees and expenses.
This litigation over environmental cleanup costs began several years ago in 1998. Early in the course of this litigation, a document depository was created pursuant to court order. As of May 27, 1999, nearly three years ago, all the defendants were provided full access to the depository in order to view and photocopy documents. Before formal discovery began, the case went through a settlement/mediation phase, known in this case as "Phase I," presided over by a special master. On December 20, 2001, the case then entered the litigation stage, "Phase II."
The case is presently governed by a detailed Case Management Order dated January 9, 2001. The order provides that "on January 21, 2002, the parties shall make their initial disclosures required by Fed.R.Civ.P. 26(a)(1)." The plaintiffs failed to timely serve their initial disclosures on or before the deadline established in the Case Management Order. Instead, they served their disclosures on January 28, 2002, one week later. In addition to being untimely, defendants Muller and Quality insist that the plaintiffs' disclosures are inadequate primarily because the plaintiffs generically referenced persons whose identities were disclosed and documents which were exchanged during the mediation phase of the case rather than detailing the names of witnesses and providing an itemized list of documents. In addition to the generic references of which the Quality and Mueller complain, the plaintiffs' initial disclosures also identified six witnesses by names, included the phone numbers and addresses for two of the witnesses, and identified four affidavits specifically.
On February 22, 2002, the plaintiffs served more specific supplemental initial disclosures which provided the names and areas of knowledge of thirteen witnesses, the addresses and phone numbers of two of the witnesses, twenty-nine different categories of documents, depositions, and affidavits, and specific calculations for four categories of damages. Moreover, as part of their supplemental initial disclosures, the plaintiffs reproduced two "Supplemental Evidence Binders" containing additional information including affidavits regarding the liability of individual defendants.
Even though the supplemental responses were mere specific, the supplemental responses still included generic references to "all persons whose identities have been disclosed to defendants in the Memphis Document Depository, in individual mailings to each defendant and during the settlement mediation process" and "those documents in the Memphis Document Depository (and] those documents already disclosed to defendants during the settlement mediation process." The plaintiffs insist that their supplemental initial disclosures render the motions of Quality and Mueller moot. Nevertheless, the plaintiffs join with Quality and Mueller in requesting that a deadline be established by which the defendants must respond to the plaintiffs' amended complaint. Rule 26(a)(1) requires disclosure of
(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;
(B) a copy of, or a description by category and location of, all documents . . . that the disclosing party may use to support its claims or defenses, unless solely for impeachment;
(C) a computation of any category of damages. . . .
Fed.R.Civ.P. 26(a)(1). The disclosures must be in writing, signed, and served. Fed.R.Civ.P. 26(a)(4). Quality and Mueller complain that the supplemental disclosures of the plaintiffs still suffer from the same defect as the initial disclosures, that is, they include generic references to witnesses and documents revealed during the mediation phase.
The generic reference by the plaintiffs to witnesses revealed during Phase I of this litigation does not sufficiently satisfy the plaintiffs' obligation under Rule 26(a)(1) to provide, in writing, at a designated time, the names of persons who may have discoverable information. Therefore, the names of persons whose identity may have been revealed in documents, in mailings, and in the mediation process must still be specifically included in the plaintiffs' Rule 26(a)(1) written disclosures. The addresses and telephone number of each individual must also be included, if known to the plaintiffs. As concerns the documents, there is no requirement under Rule 26(a)(1)(B) that the plaintiffs individually list each document. According to the rule, the plaintiffs may provide copies of documents as they have done by reproducing the "Supplemental Evidence Binders", or, the plaintiffs may describe categories of documents and designate their location which they have done by relying on the documents located in the Memphis Depository. However, the plaintiffs' reference to "those documents already disclosed to defendants during the settlement mediation process" does not satisfy the requirements of Rule 26(a)(1)(B). The plaintiffs must either provide additional copies of the documents revealed during the settlement mediation process or identify by category the documents and their current location.
As to Mueller's motion for sanctions, Rule 37(c)(1) provides that if a party fails, without substantial justification, to disclose information required by Rule 26(a)(1) the court may impose sanctions, unless the failure is harmless. The authorized sanctions include refusing to allow the disobedient party to introduce evidence regarding particular matters, striking out related portions of the pleadings, and dismissing the action with prejudice. Fed.R.Civ.P. 37(b)(2)(C) and (d). The Sixth Circuit regards the sanction of dismissal under Rule 37 for failure to cooperate in discovery to be "the sanction of last resort." Beil v. Lakewood Eng'g and Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994). Dismissal may be imposed "only if the court concludes that a party's failure to cooperate is due to willfulness, bad faith or fault." Regional Refuse Sys. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir. 1988). Because formal discovery has just recently begun and trial is not scheduled until August 2003, the one week delay by the plaintiffs in serving their initial disclosures and any omissions from the Rule 26(a)(1) disclosures in February 2002 are harmless. Plus, given the plaintiffs' attempt at providing disclosures, their prompt efforts to cure any deficiencies noted by Quality and Mueller, and the fact that much information was already possessed by Quality and Mueller, the nonmonetary sanctions sought by Mueller, including dismissal of or striking the plaintiffs' claims against Mueller, are not appropriate at this time. The plaintiffs are warned, however, that future failures to comply with discovery obligations will lead to dismissal of their claims. The motion of Mueller for sanctions is accordingly denied.
For the foregoing reasons, the plaintiffs shall file supplemental Rule 26(a)(1) disclosures in accordance with this order on or before twenty days from the date of entry of this order if there are other witnesses and documents that have not been specifically identified or categorized. Further, pursuant to Paragraph II(2) of the Case Management Order dated January 9, 2001, all defendants shall file responsive pleadings on or before twenty days from the date of entry of this Order.
IT IS SO ORDERED.