Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05 cv 00683 PSF MJW
MARK WHITE,
Plaintiff,
v.
HOME DEPOT U.S.A., INC.,
Defendant. ORDER REGARDING (1) PLAINTIFF’S MOTION TO COMPEL (DOCKET NO. 40) AND (2) PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S EXPERT WITNESS (DOCKET NO. 57)
Entered by Magistrate Judge Watanabe
This matter was before the court for hearing on April 13, 2006, on Plaintiff’s Motion to Compel (docket no. 40) and Plaintiff’s Motion to Strike Defendant’s Expert Witness (docket no. 57). The court has reviewed the motions, responses, and replies. In addition, the court has taken judicial notice of the court’s file and has considered applicable Federal Rules of Civil Procedure and case law. Lastly, the court has considered oral argument presented by the parties. The court now being fully informed makes the following findings of fact, conclusions of law, and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING PLAINTIFF’S MOTION TO COMPEL (DOCKET NO. 40) This is a racial discrimination case. Plaintiff is a current Defendant Home Depot employee. Plaintiff is African American, and he alleges in his Complaint that his salary at hire was lower than non African Americans, that he was given a poor performance *2 evaluation, and that he was denied promotional opportunities. In Plaintiff’s Motion to Compel (docket no. 40), Plaintiff requests that this court order Defendant to produce personnel files for individuals who were not decision makers or comparators, unrelated complaints against individuals whom Plaintiff admits did not discriminate against him, and confidential information concerning salaries of decision makers and unrelated personnel matters.
As to Plaintiff’s Request for Production (“RFP”) No. 11, the court finds that this RFP seeks personnel files of twenty six specifically named individuals, as well as anyone listed in the initial disclosures of either party. Defendant has agreed to provide to Plaintiff fourteen of these files, to the extent they can be located. As of the date of Defendant’s response (docket no. 46), Defendant has found eight of these files. Defendant has been unable to find some of these files and has provided as much information that is available to them to Plaintiff. Accordingly, as to RFP No. 11, the motion is DENIED, but Defendant is to continue to look for the remainder of the subject files in question.
As to Plaintiff’s Interrogatories (“Rogs”) Nos. 2 and 3 and RFP No. 12, the court finds that Rogs Nos. 2 and 3 and RFP No. 12 seek information concerning complaints made by or about individuals not alleged to have discriminated against Plaintiff and individuals with no connection to this case. Defendant has fully responded to Rogs Nos. 2 and 3 and RFP No. 12, and therefore as to Rogs Nos. 2 and 3 and RFP No. 12, the motion is DENIED.
As to Plaintiff’s RFP No. 17, Plaintiff seeks salary information for Plaintiff and the *3 five other Loss Prevention Managers hired around the same time as Plaintiff. Defendant has fully responded to RFP No. 17, and therefore as to Plaintiff’s RFP No. 17, the motion is DENIED.
As to Plaintiff’s RFP No. 10, Plaintiff seeks all notes, memos, correspondence, diaries, “To Do Lists,” daytimers, calendars, journals, or similar documents, including information stored on their computers, of eleven past and present Home Depot employees from January 2003, without respect to subject matter. Defendant has provided to Plaintiff all non privileged documents responsive to Plaintiff’s RFP No. 10. Plaintiff’s broad request as outlined in Plaintiff’s RFP No. 10, is over broad and not reasonable and will not lead to admissible evidence in this case. Accordingly, as to Plaintiff’s RFP No. 10, the motion is DENIED.
As to Plaintiff’s Rog No. 4, Plaintiff seeks from Defendant the names, contact information, gender, race and/or national origin, employment titles, employment and salary history, performance appraisal, and, if no longer with Home Depot, the date and reasons for leaving employment for every Home Depot employee that has been supervised by Thomas McKnew from 2001 to the present. Defendant has provided to Plaintiff this information as it relates to other loss prevention managers hired around the same time as the Plaintiff. Defendant has also informed Plaintiff that it is not aware of any complaints of racial discrimination, other than that of Plaintiff, filed with state, federal, or local agencies concerning conduct by Thomas McKnew. Defendant has fully responded to Plaintiff’s Rog No. 4. Information beyond what Defendant has already provided to Plaintiff is over broad and not reasonable and will not lead to *4 admissible evidence in this case. Accordingly, as to Plaintiff’s Rog No. 4, the motion is DENIED.
As to Plaintiff’s Requests for Admissions (“RFA”) No. 2, Plaintiff requests that Defendant admit to the authenticity of every document produced in this case under F.R.E. 901. Moreover, in Plaintiff’s RFA Nos. 6 and 7, Plaintiff requests that Defendant admit that certain documents are authentic and business records created by and for Home Depot under the business records exception to the hearsay rule. Here, the court finds that Plaintiff’s RFA Nos. 2, 6, and 7 are over broad, in particular, since thousands of papers of documents have been produced by Defendant to Plaintiff. Accordingly, Plaintiff RFA Nos. 2, 6, and 7 are DENIED.
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S EXPERT WITNESS (DOCKET NO. 57) As to Plaintiff’s Motion to Strike Defendant’s Expert Witness (docket no. 57), Plaintiff seeks to strike the testimony of Defendant’s Expert Witness, Dr. Gary Gutterman (psychiatrist), on the ground that his expert report was untimely produced.
Under Fed. R. Civ. P. 37(a), a court may allow expert testimony even if the expert’s report fails to comply strictly with Rule 26(a) if the failure is substantially justified or harmless. “The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.” Woodworker’s Supply Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10 Cir. 1999). The Tenth Circuit Court of Appeals has articulated the following four factor test for *5 determining substantial justification or harmlessness: (1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial, and (4) the bad faith or willfulness of the party proffering the report. Id.; Jacobsen.v Deseret Book Co., 287 F.3d 936, 953 (10 Cir. 2002).
Here, the court finds that Plaintiff has known about Dr. Gutterman since February 28, 2006. Defendant did not provide to Plaintiff an expert report from Dr. Gutterman timely. Accordingly, Plaintiff did not seek to set and take the deposition of Dr. Gutterman since Plaintiff did not have Dr. Gutterman’s expert report. However, Plaintiff has failed to demonstrate any prejudice since the jury trial is not set until September 11, 2006. There is time to take Dr. Gutterman’s deposition and cure any defect in timely service of Dr. Gutterman’s expert report. Moreover, the court does not find bad faith on behalf of the Defendant. Furthermore, the court finds that Dr. Gutterman’s testimony would be helpful to the jury and will not disrupt the trial. Based upon these findings, the court concludes that Plaintiff’s Motion to Strike Defendant’s Expert Witness (docket no. 57) should be DENIED.
ORDER WHEREFORE , based upon these findings of fact and conclusions of law, this court ORDERS :
1. That Plaintiff’s Motion to Compel (docket no. 40) is DENIED. 2. That Plaintiff’s Motion to Strike Defendant’s Expert Witness (docket no. 57) is DENIED.
3. That each party shall pay their own attorney fees and costs for both of these motions.
4. That discovery is extended to June 19, 2006, for the limited purpose of taking the deposition of Dr. Gary Gutterman (psychiatrist). The parties shall forthwith meet and set the deposition of Dr. Gutterman on or before June 19, 2006.
Done this 26 day of May 2006.
BY THE COURT s/ Michael J. Watanabe Michael J. Watanabe U.S. Magistrate Judge