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Preuss v. Kolmar Labs., Inc.

United States District Court, S.D. New York

September 4, 2013


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[Copyrighted Material Omitted]

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For Plaintiffs: Phyllis Gelman, Avi Mermelstein, Gelman & Jones, LLP, New York, New York.

For Defendant: Anthony DiOrio, Nina Massen, Jackson Lewis LLP, White Plains, New York.


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Seibel, J.

Before the Court are the Motion for Summary Judgment of Defendant Kolmar Laboratories, Inc., (Doc. 45), and the Cross-Motion of Plaintiffs William Preuss, (" Preuss" ), Robert Bloomer (" Bloomer" ), and Francis Xavier Cafiero (" Cafiero" ), (collectively, the " Plaintiffs" ) to preclude certain affirmations submitted by Defendant, (Doc. 55). For the reasons stated below, Plaintiffs' Motion to Strike is GRANTED IN PART and DENIED IN PART and Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

I. Motion to Strike

In support of its Motion for Summary Judgment, Defendant has submitted the following documents:

o Affirmation of Thad Dussinger, (Massen MSJ Aff. Ex. I (" Dussinger Aff." ))[1];
o Affirmation of Clara Bock, (Massen MSJ Aff. Ex. J (" Bock Aff." ));
o Affirmation of Concita May, (Massen MSJ Aff. Ex. K (" May Aff." ));
o Affirmation of Richard Matyus, (Massen MSJ Aff. Ex. N (" Matyus Aff." )); and
o Affirmation of Lisa Smith, (Massen MSJ Aff. Ex. P (" Smith Aff." )).

As a preliminary matter, I must determine exactly what should and should not be part of the record on Defendant's Motion for Summary Judgment.

A. Legal Standard

Federal Rule of Civil Procedure 26(a) obligates each party to provide the opposing party with, inter alia, 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). Moreover, where a disclosing party " learns that in some material respect the disclosure or response is incomplete or incorrect," that party is required to supplement or correct the disclosure in a timely manner. Fed.R.Civ.P. 26(e)(1)(A). Federal Rule of Civil Procedure 37(c)(1) provides in relevant

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part that any " party [that] fails to provide information or identify a witness as required by Rule 26(a) . . . is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). The rule's purpose is to " prevent the practice of 'sandbagging' an opposing party with new evidence." Ebewo v. Martinez, 309 F.Supp.2d 600, 607 (S.D.N.Y. 2004); see Am. Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 93 (S.D.N.Y. 2002) (" The purpose of these rules is to avoid surprise or trial by ambush." ) (internal quotation marks omitted).

A party may " defend non-disclosure on the basis that it was substantially justified or harmless." U.S. Licensing Assocs., Inc. v. Rob Nelson Co., No. 11-CV-4517, 2012 WL 1447165, at *5 (S.D.N.Y. Apr. 26, 2012). Substantial justification is defined as " justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request." Am. Stock Exch., 215 F.R.D. at 93 (internal quotation marks omitted). " The test of substantial justification is satisfied if there exists a genuine dispute concerning compliance." Henrietta D. v. Giuliani, No. 95-CV-641, 2001 WL 1602114, at *5 (E.D.N.Y. Dec. 11, 2001) (internal quotation marks omitted). Failure to comply with Rule 37(c)(1) is harmless " when there is no prejudice to the party entitled to the disclosure." Am. Stock Exch., 215 F.R.D. at 93.

Despite Rule 37(c)(1)'s self-executing nature, courts have broad discretion in determining whether and how to impose sanctions. See Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 68 (E.D.N.Y. 2012); Kunstler v. City of New York., 242 F.R.D. 261, 265 (S.D.N.Y. 2007). Further, " [p]reclusion of evidence is generally a disfavored action." Am. Stock Exch., 215 F.R.D. at 93; see Lujan, 284 F.R.D. at 68 (" Preclusion is a harsh remedy that should only be imposed in rare situations." ) (internal quotation marks omitted). " While a finding of bad faith is not required to justify preclusion of evidence under Rule 37, a court may consider bad faith in its analysis." Lujan, 284 F.R.D. at 68. In determining whether to preclude evidence under Rule 37(c)(1), courts examine: " (1) the party's explanation for the failure to comply with the disclosure requirement; (2) the importance of the testimony of the precluded witnesses; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance." Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (alterations and internal quotation marks omitted); see Lujan, 284 F.R.D. at 68; U.S. Licensing Assocs., 2012 WL 1447165, at *5.

B. Analysis

Defendant concedes that the affiants were not identified in its initial Rule 26 disclosures as individuals likely to have discoverable information,[2] nor were they identified in its numerous supplemental disclosures.[3] ( See Ps' Mem. 2; D's Opp.

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2-3.)[4] Rather, Defendant contends that it was not obligated to supplement its disclosures with information about the affiants because either their existence was " made known to [Plaintiffs] during the discovery process," or Plaintiffs were aware of the information contained in the affirmations, and thus Defendant's non-disclosure was harmless. (D's Opp. 1-2 (quoting Fed.R.Civ.P. 26(e)).)

1. The Dussinger, Matyus, and Bock Affirmations

Dussinger joined Defendant in 2007, and he became Manager of the Logistics Department in 2008. (Dussinger Aff. ¶ 5-6.) While Bloomer was employed in the Logistics Department, Keith Baker was his direct supervisor, and Dussinger was his department manager. ( Id . ¶ 6.) In January 2010, Dussinger transferred to the Purchasing Department as the Purchasing Costing Manager. ( Id . ¶ 3.) Cafiero was recalled to the Purchasing Department the same day, and Dussinger became his immediate supervisor. ( Id . ¶ 25; Massen MTS Aff. Ex. F., at 3.) Matyus, in turn, was Dussinger's direct supervisor. (Matyus Aff. ¶ 4.) Bock, a Purchasing Agent at the company, worked with Cafiero in the Purchasing Department until his termination and spoke with Cafiero " every day." (Bock Aff. ¶ ¶ 3, 5; Massen MTS Aff. Ex. B, at 3-4.)

Defendant has submitted Dussinger's affirmation to explain: (1) the sequence of events leading up to Bloomer's layoff, (Dussinger Aff. ¶ ¶ 7-24); and (2) Cafiero's alleged unsatisfactory performance in the Purchasing Department, which culminated in his absence at an important meeting and his subsequent termination, ( id . ¶ ¶ 25-38).[5] Matyus's affirmation echoes Dussinger's, and details Defendant's dissatisfaction with Cafiero's performance, his failure to report to work for the meeting, and Matyus's decision to terminate him. ( See generally Matyus Aff.) Likewise, Bock offers testimony to support Defendant's argument that Cafiero was insubordinate. (Bock Aff. ¶ ¶ 7, 11-13.)

Defendant contends that it was not obligated to disclose these individuals as potential witnesses because Plaintiffs should have been aware of their existence and significance, not only through discovery, but also from their respective relationships at the company. (D's Opp. 7.) In fact, Defendant alleges that Cafiero called Bock in March 2012 and attempted to influence her potential testimony. ( Id . at 9; Massen MTS Aff. Ex. C.) For these same reasons, Defendant argues that Plaintiffs were not prejudiced by Defendant's failure to disclose.

Of significance is the fact that Plaintiffs served document requests on Defendant seeking Dussinger's and Matyus's personnel files, as individuals who supervised Plaintiffs or participated in the decision to lay off or terminate Plaintiffs, and all documents within Dussinger's or Matyus's possession. ( See Massen MTS Aff. Ex. I, ¶ ¶ 3(a), (d), 13, 16.) Moreover, all three affiants' names were brought up several times in depositions, by Plaintiffs themselves as well as by some of Defendant's witnesses. ( See Massen MTS Aff. Exs. E-G.) Likewise, a memorandum written by Dussinger concerning Cafiero's conduct was entered as an exhibit at Cafiero's deposition. ( See id . Ex. D.)

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Although Defendant should have complied more diligently with the discovery rules, its failure to disclose Dussinger, Matyus, or Bock as potential witnesses does not warrant the severe sanction of striking their testimony because Plaintiffs were well aware of their identities and the scope of their knowledge. See LaVigna v. State Farm Mut. Auto. Ins. Co., 736 F.Supp.2d 504, 511 (N.D.N.Y. 2010) (motion to strike denied where affiant supervised plaintiff during period leading up to termination, plaintiff had awareness of affiant's role and involvement of events at issue, and several documents mentioning affiant were turned over); Morgenstern v. Cnty. of Nassau, No. 04-CV-58, 2008 WL 4449335, at *2 (E.D.N.Y. Sept. 29, 2008) (harmless error where plaintiff was aware of affiant's role in lawsuit, testified about affiant's role in deposition, and served document request on defendant seeking documents from affiant); Fleet Capital Corp. v. Yamaha Motor Corp., U.S.A., No. 01-CV-1047, 2002 WL 31108380, at *2 (S.D.N.Y. Sept. 23, 2002) ( " [A] failure to disclose witness information is harmless if the other party was well aware of the identity of the undisclosed witness and the scope of their knowledge well before trial." ) (internal quotation marks omitted); cf. Marvel Worldwide, Inc. v. Kirby, 777 F.Supp.2d 720, 727 (S.D.N.Y. 2011) (affidavits not stricken where non-disclosed affiants were mentioned at depositions), vacated in part on other grounds sub nom. Marvel Characters, Inc. v. Kirby, No. 11-CV-3333, 726 F.3d 119, 2013 WL 4016875 (2d Cir. Aug. 8, 2013).

Although this is not a case " where the disclosing party was unable to comply with its obligations through no fault of its own," the identities and scope of knowledge of these three affiants were known to Plaintiffs, they were free to depose the affiants, and the affirmations are largely duplicative of other evidence in the record. See LaVigna, 736 F.Supp.2d at 511. Thus, Defendant's failure to disclose the affiants as individuals likely to have discoverable information did not prejudice Plaintiffs, and preclusion is not warranted.

Accordingly, I may consider the affirmations of Dussinger, Matyus, and Bock in resolving Defendant's motion. Should Plaintiffs wish to depose any of those witnesses between now and trial, they may do so, with Defendant bearing the expenses other than attorney's fees. In addition, Defendant shall pay Plaintiffs' attorneys' fees in connection with the Motion to Strike. See Fed.R.Civ.P. 37(c)(1); Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First, LLC, 280 F.R.D. 147, 157 (S.D.N.Y. 2012); Triola v. Snow, No. 01-CV-1603, 2010 WL 5335104, at *1 (E.D.N.Y. Dec. 21, 2010); In re Kreta Shipping, S.A., 181 F.R.D. 273, 278 (S.D.N.Y. 1998).

2. The May Affirmation

May is a 69 year-old Switchboard Operator for Defendant. (May Aff. ¶ 3.) May's affirmation states that she is a member of a local " Red Hat Society," a membership organization open to women age 50 and over. ( Id . ¶ 5.) She also states that identifying the Red Hat Society with older women is not ageist, as the purpose of the organization is to celebrate women of a certain age. ( Id . ¶ 6.) Plaintiffs contend that Bill Luckey, Defendant's Director of Operations, would use the term " Red Hat Society" as a derogatory way to refer to the older women in the lipstick assembly portion of Defendant's operation who worked slowly. (Ps' Opp. 3, 9.)[6]

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In addition to Defendant's failure to disclose May's existence pursuant to Rule 26, Plaintiffs argue that May's affirmation should be stricken as irrelevant. (Ps' Mem. 9.) Specifically, Plaintiffs contend that the existence of an actual " Red Hat Society" does not change the fact that Luckey used the term in a derogatory manner. ( Id .) In response, Defendant states that it failed to disclose May's existence because its counsel did not ask whether anyone at the company was affiliated with the Red Hat Society until counsel began drafting the motion for summary judgment. (D's Opp. 13.)[7] Defendant further contends that because Preuss testified that the Red Hat Society was a " well known nickname" for a group of older lipstick ladies, Plaintiffs cannot claim they are prejudiced by May's affirmation. ( Id . at 13.)

Putting aside Defendant's failure to comply with Rule 26(a), May's affirmation should largely be stricken as irrelevant. Evidence presented in connection with summary judgment motions must be admissible in evidence, see, e.g., Fed.R.Civ.P. 56(c)(4); Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008), and " [i]rrelevant evidence is not admissible," Fed.R.Evid. 402. " Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed.R.Evid. 401.

Defendant contends that May's affirmation is relevant because it " demonstrate[s] that referring to individuals as members of the Red Hat Society is not objectively hostile." (D's Opp. 13.) To establish a hostile work environment, a plaintiff must prove, among other things, that an objectively reasonable employee would perceive the environment to be hostile. See Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). There is no indication, however, that May knew the statements Plaintiffs attribute to Luckey or the context in which he referred to the Red Hat Society. May's affirmation merely states that in her opinion, referring to the Red Hat Society or identifying it with older women is not " ageist." (May Aff. ¶ 6.) Such opinion, divorced from the factual context at issue, is not helpful to the fact-finder. See Fed.R.Evid. 701. While the fact that an organization called the Red Hat Society exists may bear some relevance to whether an objectively reasonable employee would perceive Luckey's reference to the Red Hat Society to be hostile or ageist, May is no better situated than the jury to reach a useful opinion on that issue.

Even if May's affirmation were wholly relevant, Defendant's failures to identify May as a person with relevant knowledge and to disclose the May affirmation until

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after the close of discovery are neither substantially justified nor harmless. Defendant had almost two and a half years to seek out an affiliated member of the Red Hat Society, yet Defendant offers no explanation for its failure to do so.[8] See Krawec v. Kiewit Constructors, Inc., 11-CV-123, 2013 WL 1104414, at *7 (S.D.N.Y. Mar. 1, 2013) (no substantial justification where party did not explain failure to comply with Rule 26(a)); Haas v. Del. & Hudson Ry. Co., No. 04-CV-1503, 2007 WL 766324, at *3 (N.D.N.Y. Mar. 8, 2007) (same), aff'd, 282 F. App'x 84 (2d Cir. 2008). Furthermore, even if Plaintiffs were aware that the Red Hat Society existed (which is not clear), they were not on notice that this particular affiant, whom Defendant does not contend any of the Plaintiffs have ever met or were aware of, would be offered as a witness in support of Defendant's case. See Haas, 2007 WL 766324, at *3 (significant prejudice shown where opposing party did not even learn of witness's existence until non-disclosing party filed its opposition to summary judgment). As this case has been pending since 2010 and Defendant had ample time to disclose May's identity, further delay of this matter through a continuance is not warranted.

Accordingly, I will not consider the information contained in May's affirmation.

3. The Smith Affirmation[9]

Smith is the Benefits Administrator in Defendant's Human Resources (" HR" ) Department. (Smith Aff. ¶ 3.) Using Defendant's computer system, " HRIS," Smith could find information about Defendant's workforce, such as the number of employees, demographic information, job titles, and employment history. ( Id . ¶ 5.) Smith generated this information and used it to testify to, among other things, the employees' average age, the number of employees terminated, the average age of employees who were laid off, and the number of employees in various departments who are members of the protected age group.[10] ( Id . ¶ ¶ 9-14.) Smith also provided the age and birth date of certain employees.[11] ( Id . ¶ 15.)

Given the record before me, it does not appear that Plaintiffs would have been on notice of the potential use of Smith as a witness. Defendant does not contend the

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Plaintiffs were aware of Smith or her role at the company, which is unsurprising considering that, allegedly, Defendant's own counsel did not even know Smith existed until preparing for summary judgment. (D's Opp. 12.) Plaintiffs should have been given an opportunity to depose Smith, and in her case, Defendant's non-disclosure cannot be classified as harmless. See Morgenstern, 2008 WL 4449335, at *3 ( non-disclosure was prejudicial where " [a]bsent disclosure, the Court [did] not see how Plaintiff could have anticipated the use of the [affiant], a person whose identity Plaintiff may not even have been aware of, and who did not play any role in the parties' discovery process" ).

Defendant contends that its failure to disclose Smith as an individual likely to have discoverable information was justified because its counsel was unaware she was the person who maintained the HRIS data system until preparing for summary judgment. (D's Opp. 12.) That counsel were as in the dark as Plaintiffs does nothing to mitigate the concerns that Rule 26 was designed to address, and counsel's lack of diligence does not excuse Rule 26 violations. Indeed, counsel's failure to determine that Smith was a necessary witness is even less excusable than its failure to identify May, as Smith's affirmation goes to the heart of Defendant's case. While I cannot say counsel acted in bad faith, they offer no excuse for their failure to disclose Smith. In fact, their argument regarding Smith's information being work-product (with which I dispense in footnote eight above) suggests she was in fact known to counsel before the summary judgment motion was briefed. If so, their actions might evidence bad faith. If not, their actions remain unjustified. Experienced employment-law counsel should have known that they would want to rely on a witness like Smith, and I cannot imagine why her identity was not disclosed (nor has Defendant explained why it was not).

Moreover, I do not find Smith's testimony to be of particular importance to Defendant, as Defendant itself contends that her testimony is " largely duplicative of other evidence already on the record," and all of the documents necessary to calculate the averages contained in the affirmation were already disclosed. ( See D's Opp. 11-12 (citing LaVigna, 736 F.Supp.2d at 512).) For that same ...

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