United States District Court, W.D. Missouri, Western Division
ORDER GRANTING IN PART MOTION TO STRIKE AND AMENDING
personal injury case arises from a vehicular accident.
Plaintiff Kenneth Trekell alleges that the driver of a
tractor-truck pulling a Target-branded trailer caused an
accident that resulted in his foot being fractured. The
tractor-truck and trailer involved in the accident drove away
without stopping, and the driver has not been identified.
Defendant Target Corporation denies any liability stemming
from the accident.
before the Court is Plaintiff's Motion to Strike
Defendant's Supplemental Rule 26 Disclosures and Expert
Designation, or in the Alternative, Motion to Amend
Scheduling Order to Extend Discovery Deadlines and Motions to
Strike Expert Designations (Doc. 43). Plaintiff argues
Defendant's Rule 26 supplemental disclosures served on
the last day of discovery are untimely and prejudiced him.
Plaintiff asks the Court to strike the disclosures, or
alternately, amend the scheduling order to allow him to
conduct additional discovery and file Daubert motions.
Defendant opposes the motion, contending the disclosures were
timely and Plaintiff was already aware of the information.
Court finds Defendant violated Rule 26 by failing to identify
potential witnesses by name in the supplemental disclosure.
These witnesses are excluded pursuant to Rule 37. For good
cause shown, the Court also amends the scheduling order. This
requires the trial date be reset, which the Court will do in
a subsequent order.
motion is GRANTED IN PART.
Rule of Civil Procedure 26 imposes various duties on
litigants to search for and disclose information during
discovery, several of which are relevant here. Rule 26(a) states
that a party must provide “the name . . . 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 rule also requires the
disclosing party to provide “a copy-or a description by
category and location-of all documents . . . that the
disclosing party has in its possession, custody, or control
and may use to support its claims or defenses, unless the use
would be solely for impeachment.” Fed.R.Civ.P.
26(a)(1)(A)(ii). Further, Rule 26(e) requires a party to
supplement or correct these disclosure “in a timely
manner if the party learns that in some material respect the
disclosure . . . is 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)(1)(A).
provides the consequences for failure to follow these rules.
Vanderberg v. Petco Animal Supplies Stores, Inc.,
906 F.3d 698, 702 (8th Cir. 2018) (“The disclosure
mandates in Rule 26 are given teeth by the threat of
sanctions in Rule 37.”) “If a party fails to
provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The
burden is on the potentially sanctioned party to prove
harmlessness or justification. Vanderberg, 906 F.3d
at 705. “In addition to or instead of this sanction,
the court, on motion and after giving an opportunity to be
heard: (A) may order payment of the reasonable expenses,
including attorney's fees, caused by the failure”
or impose other appropriate sanctions. Fed.R.Civ.P. 37(c)(1).
This means a party must move for an alternative sanction
before the court can consider an alternative sanction.
Fed.R.Civ.P. 37(c)(1); Vanderberg, 906 F.3d at 705.
Eighth Circuit stressed recently that “Rule 37(c)(1)
makes exclusion of evidence the default, self-executing
sanction for the failure to comply with Rule 26(a).”
Vanderberg, 906 F.3d at 705. “[E]xclusion
occurs automatically by operation of the rule; the rule
permits, but does not require, the imposition of an
alternative sanction on party's motion.”
Id. “In other words, ” if a party does
not comply with the disclosure requirements in Rule 26(a),
the information “is excluded unless the failure was
substantially justified or harmless.” Id. at
703. But the district court may, if either party moves for
it, “impose an additional or alternative
party moves for an alternative sanction, the district court
enjoys wide discretion to fashion a remedy or sanction
appropriate for the circumstances. Wegener v.
Johnson, 527 F.3d 687, 692 (8th Cir. 2008). In
fashioning an alternate remedy, the court must consider
“the reason for noncompliance, the surprise and
prejudice to the opposing party, the extent to which allowing
the information or testimony would disrupt the order and
efficiency of the trial, and the importance of the
information or testimony.” Id. The court's
discretion, however, narrows as the effective severity of the
sanction increases. Id. If the sanction is
tantamount to dismissal or would result in a one-sided trial,
the district court “may need to first consider the
possibility of lesser sanctions.” Vanderberg,
906 F.3d at 704; Doe v. Young, 664 F.3d 727, 734
(8th Cir. 2011).
the Court's decision turns on Defendant's conduct
during discovery, the Court must recount that history in some
6, 2018, Plaintiff filed suit in the Circuit Court of Jackson
County, Missouri. His petition alleged that at the time of
the accident, the driver of the truck that hit him was
driving in the course and scope of his employment with
Defendant or at Defendant's direction and control. Pet.
¶ 9 (Doc. 1-1). Thus, Plaintiff argues Defendant was
responsible for the driver's actions based on either a
master/servant relationship, the doctrine of respondeat
superior, and/or as joint-venturers. Id. ¶ 10.
served Defendant with his opening interrogatories and first
request for production of documents on July 25, 2018,
contemporaneously with the initial petition and summons. On
August 22, 2018, Defendant removed the case to federal court.
October 22, 2018, Defendant served its initial Rule 26
disclosures (Doc. 43-1). Defendant identified five witnesses:
(1) the Plaintiff; (2) Connor Donaldson, an eyewitness to the
accident; (3) Corey Sanders, a police officer who appears to
have worked the accident scene; (4) Melissa Jolley, a claim
manager for Hogan Transports, Inc. (“Hogan”) who
“may have” information about the location of
Hogan trucks that were hauling Defendant's trailers at
the time of the accident; and (5) Brian Beets, a manager for
Ruan Transportation (“Ruan”) who “may
have” information about the location of Defendant's
trucks that were hauling Target trailers at the time of the
accident. Def.'s Rule 26 Initial Disclosures at
1-2. As for documents, Defendant disclosed Hogan and
Ruan's GPS data. Id. at 2.
re-served his opening interrogatories and first request for
production of documents on October 24, 2018. Over the
following months, Plaintiff diligently pursued discovery but
graciously agreed to defense counsel's repeated requests
for extensions of time to produce discovery or to delay
taking depositions. Plaintiff also waited patiently for
Defendant to provide discovery and identify dates for
depositions. For example, Plaintiff's counsel advised
defense counsel of her intention to take a corporate
representative deposition on December 20, 2018. Over the
following four months, Plaintiff's counsel contacted
defense counsel no fewer than eighteen times by email and
phone attempting to get a date to depose Defendant's
corporate representative. On April 16, 2019, defense counsel
selected May 23 and 24, 2019, as possible dates for the
corporate deposition. Defendant designated Maria Olson as the
April 1, 2019, the parties filed a joint motion to amend the
scheduling order, which the Court granted on April 5,
extending Defendant's deadline to designate experts to
June 30, 2019, and moving the deadline to complete discovery
to July 10, 2019.
deposed Ms. Olson on May 23, 2019. During her deposition, she
identified three carriers with whom Defendant contracts to
make deliveries in the Kansas City area, testified that each
carrier has on-site managers, and testified that Chris Prater
was Defendant's market logistics manager. Ms. Olson also
clarified and confirmed the ownership of the tractors and
trailers Defendant used to ship goods, the type of freight
transported by Target trailers, and the Defendant's
furnishing and use of Target logos on trailers. Although
Plaintiff had previously requested bills of ...