19 F. Supp. 3d 546
D. Del.2013Background
- Plaintiff Tammy L. Crawford sued George & Lynch, Inc. (G & L) under Title VII for sexual harassment, gender discrimination, and retaliation; discovery closed June 30, 2012.
- Crawford sought documents and interrogatory responses about her performance, transfer, and termination; G & L did not initially produce documents relating to a July 21, 2008 meeting (the “Meeting”) or identify John R. Kibblehouse in Rule 26 disclosures.
- At Kevin Jones’s deposition (taken before discovery closed), Jones testified about trucker complaints and wait-time issues; after that deposition Crawford requested related documents, and G & L produced an agenda and meeting documents on July 24, 2012 and Kibblehouse’s affidavit on July 30, 2012.
- Crawford moved to strike the late-produced meeting documents and for fees; G & L moved to strike portions of the Rule 30(b)(6) testimony and portions of affidavits and sought sanctions.
- The magistrate judge applied Rule 37(e)/Konstantopoulos factors and sham-affidavit caselaw to resolve whether to exclude evidence or strike affidavit paragraphs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to strike Meeting documents produced after discovery closed | G & L withheld documents in bad faith; late production prejudiced discovery and warrants striking documents and fees | Documents corroborate existing record; produced promptly when obtained; no bad faith and prejudice can be cured | Denied — documents not stricken; no sufficient prejudice or bad faith; plaintiff declined offered cure (re-deposition) |
| Whether to strike portions of G & L Rule 30(b)(6) testimony and impose sanctions | Not applicable (plaintiff opposed strike) | Deposition exceeded noticed topics; certain testimony outside scope should be stricken and sanctions awarded | Denied — broad Rule 26(b)(1) discovery applies to 30(b)(6); testimony not stricken and no sanctions warranted |
| Whether to strike paragraphs of Frank Crawford’s affidavit as sham | (Plaintiff opposed selective strikes) | Several affidavit paragraphs conflict with prior deposition and should be stricken as sham affidavits | Granted for paragraphs 6,7,8,9,10,11,12,15,17 — struck due to unexplained contradictions and implausible refreshed recollection |
| Whether to strike paragraphs of Tammy Crawford’s second affidavit as sham | Crawford contends discrepancies are minor, explainable, or factual issues for jury | G & L contends numerous paragraphs contradict prior deposition and should be struck | Denied for listed paragraphs (6,8,10,13,15,67–77,81,83,94–98) — contradictions are minor, semantic, or for jury to weigh |
Key Cases Cited
- Konstantopoulos v. Westvaco Corp., 112 F.3d 710 (3d Cir. 1997) (factors for determining prejudice/substantial justification under discovery sanctions analysis)
- Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894 (3d Cir. 1977) (exclusion of critical evidence is an extreme sanction reserved for willful deception)
- Quinn v. Consol. Freightways Corp. of Del., 283 F.3d 572 (3d Cir. 2002) (district court discretion in evidentiary exclusion decisions)
- Jiminez v. All Am. Rathskeller, 503 F.3d 247 (3d Cir. 2007) (sham-affidavit doctrine and flexible analysis when affidavits conflict with deposition testimony)
- Van Asdale v. Int’l Game Tech., 577 F.3d 989 (9th Cir. 2009) (minor inconsistencies, honest mistakes, or clarification do not justify striking affidavits)
- Yeager v. Bowlin, 693 F.3d 1076 (9th Cir. 2012) (sham-affidavit application where affidavit shows sudden, implausible recollection without explanation)
- Harris v. New Jersey, 259 F.R.D. 89 (D.N.J. 2007) (Rule 30(b)(6) preparation obligations: corporation must prepare deponent beyond personal knowledge)