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Robertson v. Home Depot, Inc.

United States District Court, M.D. Louisiana

March 3, 2017




         This matter comes before the Court on Home Depot's Motion to Strike Recordings Used in Opposition (Doc. 42) filed by Defendant The Home Depot U.S.A., Inc. (“Home Depot” or “Defendant”). Plaintiff Lawrence E. Robertson opposes the motion. (Doc. 61-1, 68.) Oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule.

         The Court finds that the Plaintiff failed to disclose these witnesses in his initial disclosures and responses to Defendant's interrogatories, and these failures were not harmless or substantially justified. As a result, the Court will strike the audio recordings and not consider them in connection with the Plaintiff's opposition to the Defendant's motion for summary judgment. Further, because the Court reaches its decision on this basis, the Court need not address the Defendant's additional arguments, including the one that Plaintiff's counsel violated the Louisiana Rules of Professional Conduct. Finally, the Court declines to award costs and attorney's fees; exclusion of the audio recordings is a sufficient sanction for the Plaintiff's conduct.

         I. Introduction and Procedural History

         The procedural history of this case was discussed extensively in the Court's prior Ruling and Order (Doc. 74) on the Plaintiff's Motion to Amend and Supplement Response Filed to Defendant's Motion for Summary Judgment (Doc. 50) and Home Depot's Opposition to Plaintiff's Motion to Amend and Supplement Response to Motion for Summary Judgment and Request for Fees (Doc. 57). The Court need not repeat that summary here. Instead, the Court will only highlight the relevant parts.

         On December 29, 2014, Plaintiff filed a Complaint against Home Depot, alleging race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), retaliation in violation of Title VII and the ADEA, and retaliation for taking leave under the Family Medical Leave Act (“FMLA”). (Doc. 1.) Plaintiff also alleges race discrimination in violation of 42 U.S.C. § 1981 and makes state law claims under Louisiana Civil Code articles 2315 and 2320. (Doc 1.)

         On March 16, 2016, Defendant filed a Motion for Summary Judgment seeking dismissal of Plaintiff's claims. (Doc. 24.) After being granted several extensions of time in which to submit an opposition (Docs. 30, 34, 37, 38), the Plaintiff finally filed a response to Defendant's motion on May 13, 2016. (Doc. 39.) A few days later on May 17, 2016, Plaintiff filed a Motion to Amend and Supplement Response Filed to (sic) Defendant's Motion for Summary Judgment (Doc. 40) seeking, for a variety of reasons, permission to file certain exhibits not previously attached to her opposition.

         On May 24, 2016, Defendant filed the instant motion. (Doc. 42.) Defendant seeks to strike Docs. 39-13-16 (resubmitted as Docs. 40-1-4) on several grounds discussed below.

         On June 1, 2016, the Court held a status conference. At this conference, the Court discussed with the parties the various pleadings which had been filed and the circumstances surrounding same. Counsel for Plaintiff indicated that, for the reasons outlined in the Motion to Amend and Supplement (Doc. 40), there continued to be some confusion about the proper exhibits attached to that motion. Specifically, “[t]he Plaintiff advised in this conference that the current referenced exhibits attached to this motion, (Doc. 40) are incorrect.” (Doc. 48.) Plaintiff requested that she be given permission to substitute the correct exhibits. There was also some discussion about additional exhibits which Plaintiff wanted to submit in opposition to Defendant's summary judgment motion.

         At the conference, the Court granted Plaintiff's Motion to Amend and Supplement (Doc. 40), and “granted [Plaintiff] leave to file [the] correct exhibits into the record, and the Clerk of Court is directed to accept Plaintiff's substituted exhibits, which shall be filed on or before 5 PM on Monday, June 6, 2016.” (Doc. 48 (emphasis in the original).) While not specifically reflected in the minute entry (but explicit in the Court's ruling), the Court specifically stated that no new exhibits would be allowed to be filed by Plaintiff.[1] In addition, “[P]aintiff was informed that no further extensions and no additional briefing will be authorized by this Court.” (Doc. 48.)

         The Court also advised the parties that it was considering Defendant's Motion to Strike. Also discussed at the status conference, although not reflected in the minute entry, was the Court's concern regarding Plaintiff's repeated motions for extension of various deadlines and the reasons expressed by counsel for Plaintiff in those motions. Specifically, the Court advised counsel for Plaintiff that if her personal and physical problems were preventing her from adequately representing her client, she should either get additional help or withdraw and allow another attorney to substitute for her client. She assured the Court that she understood.[2]

         At the status conference, the Defendant also requested an extension of pretrial deadlines in light of the delays in the litigation associated with the motion for summary judgment. The Court was agreeable to the request. As the minute entry reflects, “[a]t the request of the parties . . . the deadline for filing the final pretrial order [was] extended to August 12, 2016, and the final pretrial conference [was] reset for September 22, 2016[.]” (Doc. 48.)

         On June 14, 2016, Plaintiff filed a “Motion Requesting Permission to File Memorandum in Response to Motion to Motion to Strike in Excess of Page Limit.” (sic) (Doc. 61) and attached a proposed twenty-six page opposition to the instant motion. (Doc. 61-1.) On June 20, 2016, Defendant replied to the proposed memorandum in opposition. (Doc. 62.)

         On July 15, 2016, Defendant filed an Unopposed Motion for Extension of Unexpired Pretrial Deadlines and Continuance of Pretrial Conference and Trial Date. (Doc. 65.) On July 18, 2016, the Court granted the motion and continued the trial date to September 25, 2017 (Doc. 66).

         On August 22, 2016, the Court granted the Plaintiff's motion to exceed the page limit in connection with her opposition to the instant motion. (Doc. 67.) On the same day, the opposition was docketed. (Doc. 68.)

         According to the docket sheet, on August 26, 2016-over two months after filing her original opposition to the instant motion and nearly three months after the June 1, 2016 conference-Plaintiff submitted additional exhibits in connection with her opposition. (See Doc. 68.) Specifically, Plaintiff included one hundred, ninety-four (194) pages of additional exhibits, most of which consisted of the Plaintiff's deposition. (See Doc. 68-6.) At no time was Plaintiff granted leave of court to submit these exhibits. Further, this submission appears to be in violation of at least the spirit of the Court's June 1, 2016, order that no additional exhibits would be considered in connection with the motion for summary judgment. (Doc. 74 at 12-13.)

         II. Parties' Arguments

         A. Defendant's Memorandum in Support (Doc. 42-1)

         Defendant seeks an order striking audio recordings of four individuals-Nikisha Washington, Jermaine Antoine, Terri McCray and Deandre Augustus. Defendant advances several arguments, but the Court will focus on one.

         Defendant contends that the Plaintiff failed to disclose the witnesses at issue in his discovery responses. Plaintiff did not mention these four individuals in his initial disclosures, and he omitted them in his responses to Defendant's interrogatories. Plaintiff also failed to supplement his discovery to list these witnesses.

         Further, the Defendant contends that the failure to disclose these witnesses was not harmless or substantially justified. Defendant argues that Plaintiff considers this evidence important, and that underlines how crucial it was for the Defendant to designate the witnesses. Defendant has also been prejudiced; it neither interviewed nor conducted discovery on these witnesses because it was unaware that the Plaintiff viewed them as material. The discovery deadline has also long passed, and reopening discovery would lead to further prejudice in the form of time and expense. A continuance would further prejudice the Defendant, as it may have a limited amount of time to identify rebuttal witnesses. Lastly, Plaintiff has failed to offer an explanation for the failure.

         In closing this section, Defendant asserts that the appropriate remedy is striking the witnesses. Defendant cites case law to support this argument.

         B. Plaintiff's Response to the Defendant's Motion to Strike Recordings (Doc. 61-1) [3]

         In sum, Plaintiff argues that the four witnesses in the recordings were identified in prior submissions, that the Defendant was not prejudiced by the submissions and has time to depose these persons, that the recordings need not be sworn, and that the Defendant has failed to identify a basis for the award of costs and attorney's fees. The Plaintiff then explores each of these contentions in detail.

         Concerning the first assertion, Plaintiff states that, at his deposition, Defense counsel “specifically asked for and received Mr. Robertson's answer as to whom he thought would be called as possible witnesses by him.” (Doc. 61-1 at 2.) Defendant thus had prior notice. Specifically, Plaintiff points to testimony that “Nikisha Washington, Thomas Workman, and Terri McCray were possible witnesses as these were the only people who reached out to [Plaintiff] when he took [FMLA] leave in the summer of 2013.” (Doc. 61-1 at 3.) According to Plaintiff, “[t]hese people had specific information from [Plaintiff] concerning his well-being and what he had to say about his situation at work, and any other matters they may have discussed with [Plaintiff].” (Doc. 61-1 at 3 (citing Plaintiff's Deposition at 160-61.) Plaintiff argues that Defendant could have obtained information from these individuals.

         Further, Jermaine Antoine “was specifically named as an Assistant Store Manager alongside whom Mr. Robertson had worked.” (Doc. 61-1 at 3 (citing Plaintiff's Deposition at 170).) Plaintiff said that this individual also had relevant knowledge that the Defendant could have learned “if the Defendant had chosen to actually investigate Mr. Robertson's complaints, his charge, and later his claims.” (Doc. 61-1 at 3.)

         Plaintiff argues that all four individuals who were interviewed and recorded are “people who worked alongside Mr. Robertson at the North Baton Rouge and Denham Springs stores. The Defendant was aware of these individuals and their relationship to the lawsuit (which is nonexistent) and their working relationships with [Plaintiff][.]” (Doc. 61-1 at 3-4.) Plaintiff maintains that this “is and should be evidenced in the Defendant's personnel records, records regarding staffing, and other internal documents.” (Doc. 61-1 at 4.)

         Plaintiff reiterates that the four individuals worked with Plaintiff at the two stores. Plaintiff argues that it “was conceivable and inevitable that they would have knowledge concerning” the store managers and staff. (Doc. 61-1 at 4.) Plaintiff claims that the “information garnered from these three individuals has always been available to Defendant and should have been gathered during the EEOC investigation and after Mr. Robertson filed this lawsuit.” (Doc. 61-1 at 4.)

         According to Plaintiff, Defendant “should have investigated” the issues involving these witnesses. (Doc. 61-1 at 4.) Plaintiff then argues why. Plaintiff reurges: “In his deposition taken by the Defendant on December 30, 2015, Mr. Robertson named three of the four individuals and specifically named two as being possible witnesses.” (Doc. 61-1 at 5.)

         Plaintiff next claims that Plaintiff stated in his deposition that three of the interviewed people personally reached out to Mr. Robertson when he was on Family Medical Leave”; “Defendant knew prior to filing its motion for summary judgment that at least two of the four individuals had information directly from [Plaintiff], and that at least one other named person, Jermaine Antoine, had interacted with [Plaintiff] during the significant time frame in which [Plaintiff's] claims arose.” (Doc. 61-1 at 5.) Plaintiff argues that Defendant should have known about this information “years ago when the claims arose[.]” (Doc. 61-1 at 6.)

         Plaintiff continues that this evidence is admissible under Fed.R.Evid. 803(21) as “reputation concerning character.” These individuals knew about Plaintiff's excellent character and about the poor character of David Gibson, the store manager at the North Baton Rouge store.

         Plaintiff's next section purports to discuss how the evidence is not prejudicial. Plaintiff begins by stating how he provided initial disclosures. Plaintiff then states how Defendant sought in interrogatories the identity of all persons “who possess knowledge pertaining to any fact or issue involved in this case” and “all witnesses [Plaintiff] believe[s] may have, or actually did witness any alleged discrimination or whom were otherwise made aware of the alleged discrimination.” (Doc. 61-1 at 7.) Plaintiff said he answered these questions “[b]ased on the information and understanding of [Plaintiff] and his counsel at the time the Interrogatories were answered.” (Doc. 61-1 at 7.) Plaintiff said “there was no possible way to believe that there were witnesses to the discriminatory acts.” (Doc. 61-1 at 7.) Plaintiff then explains how Washington and McCray “did witness Mr. Gibson's rude and unprofessional conduct towards [Plaintiff], avoiding him, complaining about [Plaintiff's] Family Medical Leave, and other personal attacks.” (Doc. 61-1 at 7.)

         Plaintiff asserts that the “central evidence that raises genuine issues of material facts are the acts and omissions of district and regional management in attempting to discipline [Plaintiff] and Berda Cage for violations that did not exist, and the use of David Gibson as a conduit for the imposition of the undeserved discipline.” (Doc. 61-1 at 8.) Plaintiff elaborates on this point for several paragraphs before stating:

The conversations with the four individuals occurred after the Interrogatories were answered, and after the deposition of Mr. Robertson wherein he provided the names of three of four individuals as either persons who may be called as witnesses, and one as a person who worked alongside him during the pertinent time frame. Three of those conversations and the information gathered did not occur until after the discovery deadline had passed and after the Defendant had filed its motion for summary judgment. What the individuals had to say was not known until counsel for Mr. Robertson contacted them. The import of what the four individuals had to say was not understood until the Defendant forwarded the final discovery and counsel's perception of the case shifted to discount the argument that David Gibson was a lone actor.

(Doc. 61-1 at 8-9.)

         The Plaintiff then declares that the interrogatories, which were objected to, were “simply too broad and all-encompassing to be subject to sanctions.” (Doc. 61-1 at 9.) Plaintiff attempts to distinguish the case cited to by Defendant for the “substantially justified or harmless” analysis.

         The Plaintiff then contends that Defendant was under a duty to investigate the EEOC complaint. These four witnesses, Plaintiff maintains, “fit that category.” (Doc. 61-1 at 11.) The Plaintiff then elaborates on why the Defendant should have expected testimony from Washington.

         Defendant's next section is entitled, “The Evidence Was Available to the ...

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