United States District Court, S.D. Georgia, Augusta Division
RANDALL HALL, UNITED STATES DISTRICT COURT CHIEF JUDGE
the Court is Plaintiff's motion to strike. (Doc. 32.) For
the following reasons, Plaintiff's motion is
GRANTED IN PART, DENIED IN PART, and the
Court RESERVES JUDGMENT IN PART.
present action arises from Defendant's termination of
Plaintiff's employment. (See Compl., Doc. 1.)
Plaintiff alleges Defendant terminated him based on his race
and in retaliation for highlighting Defendant's practice
of discrimination in compensation and termination.
(Id. ¶¶ 10-11, 14-32.) Plaintiff raised
his concerns with Defendant on November 8, 2017, and was
terminated on November 10, 2017. (Pitts Formal Compl., Doc.
18-17; Brian Pitts Dep., Doc. 29, at 98:24-99:1.)
Defendant's Motion for Summary Judgment
moved for summary judgment as to both the discrimination and
retaliation claims, and the motion is currently pending.
(Mot. for Summ. J., Doc. 17.) In his response to
Defendant's motion for summary judgment, Plaintiff argued
the close proximity between his protected conduct and the
adverse employment action created an issue of fact as to the
"causal connection" requirement of his retaliation
claim. (Resp. to Mot. for Summ. J., Doc. 25, at 27-28.)
Plaintiff's argument continued that because he presented
sufficient evidence as to the "causal connection"
requirement - along with the other requirements to establish
a prima facie case for retaliation - he survived summary
judgment as to that claim. (Id. at 21, 29.)
filed its reply brief affixing two evidentiary exhibits in
support. (Docs. 30, 30-3, 30-4.) The first attachment
purports to show forecasted versus realized monetary
production figures at Defendant's Thomson, Georgia plant
("Thomson Plant") through December 2017.
("Sales Chart," Doc. 30-3.) Defendant argues that
it is entitled to summary judgment as to Plaintiff's
racial discrimination claim because Plaintiff fails to show
pretext as a matter of law. (Br. Supp. Mot. for Summ. J.,
Doc. 18, at 21-22; Reply Br. Supp. Mot. for Summ. J., Doc.
30, at 6-7.) Defendant offers the Sales Chart in support of
its position that it legitimately terminated Plaintiff as
part of a larger reduction in force. (Reply Br. Supp. Mot.
for Summ. J., at 6-7.)
claims that the second attachment is an exchange of emails
between Lynn Schnepp, Defendant's Regional Director of
Human Resources, and Ginelda Lyons, Defendant's Human
Resources Manager at the Thomson Plant. ("'November
7, 2017 Emails," Doc. 30-4.) Defendant offers the
November 7, 2017 Emails as evidence that Defendant decided to
terminate Plaintiff on November 7, 2017, prior to his alleged
protected conduct on November 8, 2017, in an effort to defeat
the alleged causal connection between Plaintiff's
protected conduct and his termination. (Reply Br. Supp. Mot.
for Summ. J., at 7-8.) Plaintiff failed to file a sur-reply
to Defendant's motion for summary judgment. As an
alternative, Plaintiff filed his Motion to Strike Exhibits 2
& 3 to Defendant's Summary Judgment Reply
("Motion to Strike"). (Doc. 32.)
Motion to Strike
first saw the Sales Chart and November 7, 2017 Emails
attached to Defendant's reply brief. (Mot. to Strike,
Doc. 32, at 1-4.) Defendant does not contest whether its
omission of the documents during discovery violates Federal
Rule of Civil Procedure 26. (See Resp. to Mot. to
Strike, Doc. 35, at 2-6.) Instead, Defendant contends that
its failure to disclose the November 7, 2017 Emails was
harmless and its failure to disclose the Sales Chart was
substantially justified and harmless. (Id. at 6-12.)
Plaintiff disagrees and further asserts Rule 37 requires the
Court to exclude the documents. (Mot. to Strike, at 4-9.)
discuss unaddressed issues,  the Court held a telephonic
hearing on March 26, 2019. (Clerk's Minutes, Doc. 46.) In
reaching the conclusions contained herein, the Court has
considered the Parties' arguments in the hearing and the
asserts exclusion is proper because exclusion is automatic
and mandatory under Rule 37. Therefore, Plaintiff continues,
the Court is prohibited from awarding lesser sanctions
instead of exclusion.
Motion to Strike
initial matter, the Court addresses the procedural
correctness of Plaintiff's Motion to Strike. After
initially filing the Motion to Strike, Plaintiff refiled the
motion to strike as a Notice of Objection to Exhibits 2 &
3 to Defendant's Summary Judgment Reply ("Notice of
Objection"). (Doc. 34.) Plaintiff explains that he
refiled the motion because a motion to strike is not the
proper vehicle to exclude the exhibits to Defendant's
reply brief. (Notice of Objection, Doc. 34, at 1 n.l.)
Plaintiff is correct that a motion to strike is not the
proper vehicle here.
to Federal Rule of Civil Procedure 12(f), governing motions
to strike, "The court may strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter." For purposes of
Plaintiff's motion, the operative word is
"pleading." "Pleadings" are a complaint,
an answer to a complaint, an answer to a counterclaim
designated as a counterclaim, an answer to a crossclaim, a
third-party complaint, an answer to a third-party complaint,
and a reply to an answer. Fed.R.Civ.P. 7(a).
"Pleading" does not encompass a motion for summary
judgment. Polite v. Dougherty Cty. Sch. Sys., 314
Fed.Appx. 180, 184 n.7 (11th Cir. 2008) (per curiam); see
also Addison v. Ingles Mkts., Inc., No. 3:11-CV-3 (CAR),
2012 WL 3600844, at *1 (M.D. Ga. Aug. 21, 2012) ("[A]
party may object that the material cited to support
or dispute a fact cannot be presented in a form that would be
admissible in evidence" and "there is no need
to make a separate motion to strike.") (emphasis in
original) (quoting Fed.R.Civ.P. 56(c)(2); id.,
advisory committee's notes (2010)).
attempts to correct the procedural defect in his Notice of
Objection. (Doc. 34.) It appears Plaintiff asks that the
Court treat the motion as an evidentiary objection.
See Addison, 2012 WL 3600844, at *2. But
Plaintiff raises no evidentiary objections to the November 7,
2017 Emails. In actuality, Plaintiff seeks the exclusion
sanction available under Rule 37. Therefore, Plaintiff's
motion to strike is properly construed as a motion for
sanctions pursuant to Federal Rule of Civil Procedure
37(c)(1). See Almond v. City of Canton, No. 1:05-
CV-02748-CAP/AJB, 2006 WL 8432780, at *l-2 (N.D.Ga. Dec. 5,
Federal Rule of Civil Procedure 37
relies on Federal Rule of Civil Procedure 37(c)(1) as the
authority demanding the Court exclude the disputed evidence:
If a party fails to provide information ... as required by
Rule 26 . . . (e), the party is not allowed to use that
information ... to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified
or is harmless. 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; (B) may
inform the jury of the party's failure; and (C) may
impose other appropriate sanctions ....
Parties do not dispute that Rule 26(e) obligated Defendant to
supplement its document production with the Sales Chart and
November 7, 2017 Emails. Therefore, the first question under
Rule 37(c) (1) is whether Defendant's omissions were
substantially justified or harmless.
Substantial Justification and Harmlessness
Rule 37(c) (1), sanctions are required if the nondisclosing
party's failure was substantially justified or harmless.
"An individual's discovery conduct should be found
'substantially justified' under Rule 37 if it is a
response to a 'genuine dispute, or if reasonable people
could differ as to the appropriateness of the contested
action.'" In re Delta/AirTran Baggage Fee
Antitrust Litig., 846 F.Supp.2d 1335, 1358 (N.D.Ga. Feb.
3, 2012) (quoting Devaney v. Cont'l Am. Ins.
Co., 989 F.2d 1154, 1163 (11th Cir. 1993)). On the other
hand, a discovery mistake is harmless "if it is honest
 and is coupled with the other party having sufficient
knowledge that the material has not been produced."
Id. (quoting Go Med. Indus. Pty, Ltd. v. Inmed
Corp., 300 F.Supp.2d 1297, 1308 (N.D.Ga. 2003)). Whether
the opposing party suffered prejudice underlies the
harmlessness determination. See Hewitt v. Liberty Mut.
Grp., Inc., 268 F.R.D. 681, 683 (M.D. Fla. 2010). The
nondisclosing party bears "[t]he burden of establishing
that a failure to disclose was substantially justified or
harmless." Mitchell v. Ford Motor Co., 318
Fed.Appx. 821, 824 (11th Cir. 2009) (quoting Leathers v.
Pfizer, Inc., 233 F.R.D. 687, 697 (N.D.Ga. 2006)). At
the same time, "[t]he district court has broad
discretion in determining whether a violation is justified or
harmless" under Rule 37. Abdulla v. Klosinski,
898 F.Supp.2d 1348, 1359 (S.D. Ga. 2012) (citation omitted).
November 7, 2011 Emails
the November 7, 2017 Emails, Defendant argues that its
failure to locate and produce the evidence was harmless.
Defendant claims that its discovery blunder was an honest
mistake and it utilized search terms gathered from
Plaintiff's discovery requests. (Resp. to Mot. to Strike,
at 4.) The Court finds no evidence that Defendant
intentionally harbored the November 7, 2017
Emails. Moreover, the Court cannot comprehend a
reason why Defendant would consider concealing evidence so
advantageous to its defense. Therefore, the first portion of
the harmlessness test, an honest mistake, is met.
Court, however, reaches a different conclusion as to the
second prong. Defendant claims that Ms. Schnepp's
testimony sufficiently informed Plaintiff of Defendant's
position that it planned to terminate Plaintiff before
November 8, 2017. Whether Plaintiff had knowledge of
Defendant's position is not the inquiry under Rule 37.
The question is whether Plaintiff possessed knowledge that
the information had not been produced. The difference between
knowledge of a party's position and actual knowledge of
the omitted information is essential for the purposes of
discovery. When a requesting party is aware of the withheld
information, the requesting party may pursue the information
through other avenues, such as a motion to compel. See
Two Men & a Truck Int'l, Inc. v. Residential &
Commercial Transp. Co., No. 4:08cv67-WS/WCS, 2008 WL
5235115, at *2 (N.D. Fla. Oct. 20, 2008). However, the party
cannot pursue information if it is entirely unaware the
information exists. The willful exchange of information is
the nucleus of discovery, and trust that opposing parties
will disclose relevant information is essential. See In
re E.I, du Pont de Nemours & Co., 918 F.Supp. 1524,
1542 (M.D. Ga. 1995) ("The obvious and overall purpose
of discovery under the Federal Rules is to require the
disclosure of all relevant information, so that the ultimate
resolution of disputed issues in any civil action may be
based on a full and accurate understanding of the true facts,
and therefore embody a fair and just result."),
rev'd on other grounds, 99 F.3d 363 (11th Cir.
the above, the Court concludes that Defendant's failure
to disclose the November 7, 2017 Emails was not harmless
because Plaintiff lacked sufficient knowledge the emails
existed. In fact, the record shows that Plaintiff was led to
believe no such emails existed, and Plaintiff opposed summary
judgment relying on this belief. (See Resp. to Mot.
for Summ. J., at 20.) In her deposition, when Plaintiff's
counsel asked Ms. Schnepp if an email like the November 7,
2017 Emails existed, she responded: "If I had anything I
would have turned it over with the discovery, but I don't
believe there's anything that exists that confirms him by
name." (Lynn Schnepp Dep., Doc. 28, at 11:16-18.)
Further, Defendant supplemented its document production but
failed to include the November 7, 2017 Emails. (Def.'s
First Suppl. Disc. Resps., Doc. 35-3, ¶ 13.) Through
this series of discovery responses, Defendant led Plaintiff
to reasonably believe that no email evidenced Defendant's
intent to terminate Plaintiff prior to November 8, 2017.
Schnepp explained that upon reviewing Plaintiff's
opposition to Defendant's motion for summary judgment,
she performed alternative searches for emails expressing
Defendant's intent to terminate Plaintiff. (Lynn Schnepp
Aff., Doc. 35-6, ¶ 7.) After searching the email
archives for "severance," Ms. Schnepp eventually
uncovered the November 7, 2017 Emails. (Id. ¶
9.) Ms. Schnepp does not explain why Plaintiff's
opposition brief, but not the direct question in her
deposition, encouraged her to perform additional searches.
also shows that the late discovery resulted in prejudice. The
improper disclosure of requested documents after the close of
discovery generally results in prejudice to the opposing
party. See Stallworth v. E-Z Serve Convenience
Stores, 199 F.R.D. 366, 369 (M.D. Ala. 2001)
("Plaintiff was prejudiced by having to spend additional
time and resources, at the eleventh hour, analyzing and
responding to . . . 'highly relevant and crucial'
material.") After he first saw ...