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Mann v. XPO Logistics Freight, Inc.

United States District Court, D. Kansas

November 2, 2017

ANTHONY MANN, DANA MOYE, and KATINA MCGEE, Plaintiffs,
v.
XPO LOGISTICS FREIGHT, INC., f/k/a CON-WAY TRANSPORTATION SERVICES, INC., f/k/a CON-WAY FREIGHT INC., Defendant.

          ORDER

          JAMES P. O'HARA U.S. MAGISTRATE JUDGE

         Plaintiffs are truck drivers who bring this employment-discrimination suit against their former employer, defendant XPO Logistics Freight, Inc., alleging they were subject to discrimination, harassment, and retaliation because of their race, age, and/or sex. They have filed a motion for the entry of sanctions against defendant based on alleged discovery abuses (ECF No. 153) and a related, but separate, motion to modify the scheduling order to extend the discovery deadline by ninety days (ECF No. 154). As discussed below, the motion for sanctions is denied, but the motion to extend discovery is granted and new case deadlines are set.

         Motion for Sanctions

         Plaintiffs seek sanctions on three grounds: (1) under Fed.R.Civ.P. 37(b)(2)(A) for defendant's alleged failure to comply with a discovery order, (2) under Fed.R.Civ.P. 37(c)(1) for defendant's alleged failure to disclose documents as required by Fed.R.Civ.P. 26(a) and (e), and (3) under Fed.R.Civ.P. 37(c)(2) for defendant's alleged failure to admit to a request for admission plaintiffs served under Fed.R.Civ.P. 36. The court will address each of these arguments in turn.

         I. Defendant's Alleged Failure to Comply with a Discovery Order

         On July 19, 2017, the undersigned U.S. Magistrate Judge, James P. O'Hara, entered an order granting, in part, a motion brought by plaintiffs to compel discovery.[1] Defendant thereafter served supplemental discovery answers on or around August 15, 2017. Plaintiffs' instant motion alleges defendant's supplemental answers failed to comply with four aspects of the court's order, and seeks the entry of sanctions under Rule 37(b)(2)(A).

         Rule 37(b)(2)(A) provides that if a party “fails to obey an order to provide or permit discovery, ” the court may direct the entry of sanctions. The rule lists seven examples of sanctions that “may” be imposed. Although the imposition of sanctions is within the court's discretion, any sanction ordered “must be ‘just' and related to the claim ‘at issue in the order to provide discovery.'”[2] In other words, when considering the totality of the circumstances involved in the case, the sanction must be proportional to the specific abuse of the legal process.[3]

         First, plaintiffs assert defendant failed to comply with the court's order that defendant respond to plaintiff Mann's Interrogatory No. 16(a), which sought the name, address, and telephone number of each person responsible for developing defendant's procedures and policies about avoiding racial discrimination in the workplace.[4] Plaintiffs state defendant supplemented its answer by listing Scott Engers as the developer, but failed to provide Engers's address and telephone number. Defendant concedes it did not provide Engers's contact information, but defends its inaction by explaining Engers retired from Con-Way Freight (defendant's corporate predecessor) in 2009, so defendant cannot represent that the contact information defendant lists for Engers is current. Defendant informed plaintiffs as much during meet-and-confer conversations preceding the filing of plaintiffs' motion for sanctions, but offered to “try to search for information for Engers.”[5] Nonetheless, plaintiffs included this issue in their motion. In the October 20, 2017 declaration of Paul Frayer offered in support of defendant's response to the motion, Frayer provides the address for Engers as it is maintained in defendant's records.[6]

         Considering the circumstances, the court will not sanction defendant for not providing the contact information it possessed for Engers prior to the filing of plaintiffs' motion. Although defendant should have provided the information in its records (with the caveat that the information may not be current) to plaintiffs in its first response to the court's order, the record reflects the parties were still actively discussing this issue on the date plaintiffs filed their motion for sanctions. Defendant has since provided the contact information in its possession, and there is nothing more to be done.

         Second, plaintiffs complain defendant failed to fully answer Mann's Interrogatory No. 16(b), which sought “[e]ach date on which a procedure [about avoiding racial discrimination] was published and initiated or a program was presented, beginning January 1, 2010.”[7] The court has reviewed the record, however, and neither plaintiffs' motion to compel[8] nor the court's order partially granting the motion to compel[9] addressed subsection (b) of Mann's Interrogatory No. 16. Accordingly, defendant's supplemental answer to Mann's Interrogatory No. 16(b) did not violate the court's order and sanctions may not be imposed under Rule 37(b)(2)(A).

         Third, plaintiffs assert defendant failed to comply with the court's order that defendant respond to Mann's Interrogatory No. 17, which sought information about defendant's “procedures and programs . . . for providing mental health services for your employees, ”[10]and Mann's companion Request No. 10, which sought copies of such procedures and programs. Defendant responds, and the record confirms, that defendant's supplemental answers discussed defendant's Employee Assistance Program (EAP), listed the bates numbers of the corresponding EAP documents, and listed Engers as their developer.[11] It appears from plaintiffs' reply brief that plaintiffs' concern is defendant's failure to provide contact information for Engers.[12] This concern is addressed above, and the court has declined to sanction defendant on this basis.

         Finally, plaintiffs seek sanctions under Rule 37(b)(2)(A) based on defendant's alleged failure to comply with the court's order requiring it to respond to plaintiff Moye's Request No. 13, seeking the personnel file of former terminal manager Jeff Vogavich.[13] Defendant produced Vogavich's personnel file in August 2017.[14] The file contained an August 23, 2001 letter to Vogavich referencing reports of noose hangings at defendant's Kansas City terminal. Based on this letter, plaintiffs contend the personnel file had been “cleaned” before it was produced because it contained no other documentation about the 2001 noose incidents.[15]

         The court is not convinced that defendant violated the court's order by failing to produce the entire contents of Vogavich's personnel file. Defendant has presented Frayer's sworn decalaration attesting to the fact that defendant produced the entire personnel file.[16]Frayer explains that after plaintiffs' counsel asked about additional documents concerning the 2001 noose incidents, defendant conducted additional searches (beyond Vogavich's file) for such documents and found none.[17] As part of this additional search, however, defendant did find documents reflecting an investigation of noose hangings in 2008, [18] but those documents were not the subject of the court's earlier discovery order. Defendant's recent production of the 2008 documents is addressed separately below. The court declines to impose sanctions under Rule 37(b)(2)(A).

         II. Defendant's Alleged Failure to Disclose

         Plaintiffs next move for sanctions under Rule 37(c)(1) for defendant's failure to supplement its discovery responses as required by Rule 26(e). Rule 37(c)(1) states that if a party fails to provide information “as required by Rule 26(a) or (e), the party is not allowed to use that information . . . unless the failure was substantially justified or is harmless.”[19] The determination of whether the “violation is justified or harmless is entrusted to the broad discretion of the district court.”[20] Although the court “need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose, ”[21] the court should be guided by the following factors: (1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability to cure any prejudice; (3) the potential for trial disruption if the testimony is allowed; and (4) the erring party's bad faith or willfulness.[22]

         On March 24, 2017, Moye served a request for admission on defendant, asking defendant to admit “[n]ooses were hung in defendant XPO Logistic's driver room, break room, cafeteria, and men's bathroom.”[23] Defendant responded, “denied.”[24] As noted above, defendant recently discovered documents (including e-mails, a report, and pictures) concerning nooses found in its Kansas City terminal in 2008.[25] Defendant produced these documents to plaintiffs on October 12, 2017.[26] Plaintiffs assert defendant “attempted to hide” these documents and only produced them after plaintiffs' counsel questioned whether documents were missing from Vogavich's personnel file. Plaintiffs argue defendant should be sanctioned for this delay in production.

         Defendant responds that Moye's request for admission “states facts that are incorrect, and therefore was properly denied.”[27] Defendant further states, “[p]laintiffs never propounded any interrogatories or document requests regarding nooses, ” and, in any event, defendant produced the documents to plaintiffs within a day of their discovery.[28] Defendant states it “produced these documents pursuant to Rule 26(a)(1)(A)(ii) as materials it may rely on to support its defenses in the event Plaintiffs are permitted to introduce evidence regarding allegations about nooses that are 9 and 16 years old.”[29] According to defendant, plaintiffs are mischaracterizing its voluntary production of documents as discovery misconduct.

         The court finds defendant's argument that it “properly denied” Moye's request for admission inconsistent with the purpose and spirit of discovery. Though defendant may be technically correct that the facts stated in the request were false (it is unclear which portion of the request defendant takes issue with), [30] the purpose of discovery is “to eliminate surprise and to narrow the issues.”[31] Moreover, Fed.R.Civ.P. 36(a)(4) requires any denial to “fairly respond to the substance of the matter.” The court agrees with plaintiffs that defendant had a duty “to make a reasonable inquiry to determine [its] ability to admit or deny, ”[32] and in making the inquiry defendant should have discovered the documents concerning the 2008 noose incidents. Defendant then had a duty under Rule 36 to act in “good faith” and to give context to its denial.

         Nevertheless, the court does not find defendant's actions warrant the imposition of sanctions under Rule 37(c)(1). Under the factors set forth in Woodworker's Supply, the court finds defendant's initial failure to disclose the documents substantially justified or harmless.

         Any prejudice plaintiffs may have suffered by the late disclosure of the documents related to the 2008 noose incidents can be cured by the extension of the discovery deadline, which the court implements below. And though defendant may have failed in its duty to investigate when it received Moye's request for admission, there is no evidence this was the result of defendant's bad faith or willful blindness. Frayer's sworn declaration states defendant produced the documents within a day of discovering them.[33] Therefore, the court declines to award sanctions under Rule 37(c)(1).

         III. Defendant's Alleged Failure to Admit

         The final basis on which plaintiffs seek sanctions is Rule 37(c)(2). Rule 37(c)(2) provides, “If a party fails to admit what is requested under Rule 36 and if the requesting party later proves . . . the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof.” If the requesting party meets this burden of ...


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