United States District Court, D. New Mexico
ORDER GRANTING DEFENDANT'S MOTION TO
GREGORY B. WORMUTH JUDGE
matter comes before the Court on Defendant's Motion to
Strike or Exclude Exhibits to Plaintiff's Affidavit
(doc. 69) and the attendant briefing (doc.
70). The Court, for the following reasons, GRANTS
1, 2018, Plaintiff filed her Response in opposition to
Defendant's Motion for Summary Judgment. Doc.
55. In her Response, Plaintiff included Plaintiff's
affidavit, which referred to numerous attachments not
included in her submission. Doc. 55-5. In its Reply
on May 16, 2018, Defendant argued that Plaintiff's
affidavit should be disregarded in part because it relied on
materials not part of the record as they were not attached to
the Response. Doc. 56 at 2 n.2. Not until November
16, 2018, six months after briefing on the motion was
complete (see doc. 57), did Plaintiff file her
Notice of Errata, which contained the attachments referenced
in her affidavit. Doc. 67. Moreover, the Notice of
Errata was filed less than three days before the hearing on
the summary judgment motion which had been scheduled since
October 17, 2018. Id. At the hearing, counsel for
Defendant objected to the Court's consideration of the
attachments produced by Plaintiff in her Notice of Errata.
Doc. 68 at 5-6. In response, the Court permitted
Defendant to file the instant Motion to Strike in order allow
the parties to present arguments on the issue. Id.
filed its Motion to Strike or Exclude Exhibits to
Plaintiff's Affidavit on November 30, 2018. Doc.
69. While none of the exhibits were attached to
Plaintiff's Response, Defendant further explains that
Plaintiff failed to produce the majority of the exhibits
during discovery, even though these documents were responsive
to Defendant's discovery requests. Id. at 2. As
to the documents that were not produced in discovery
(Attachments A, B, D, H, I, J, K, L, M, N, O, P and R),
Defendant requests that they be stricken from the record and
excluded from consideration due to Plaintiff's discovery
violation, her failure to include the attachments in her
Response, and her delay in remedying her omission for six
months thereafter. Id. at 3, 5.
Response, Plaintiff provides absolutely no justification or
explanation for the six-month delay in attaching the
documents. On a few occasions, she states that the exhibits
“were submitted in response to the Court's request
for the exhibits referenced in the affidavit….”
Doc. 70 at 3; see also id. at 1
(“upon the Court's request [the attachments] were
submitted”). True, when the case was reassigned to the
undersigned, court staff advised Plaintiff's counsel by
phone message that the Court had not found the
“attachments” on the docket. However, that
message was left in early October and did not excuse or
mitigate the failure to originally attach the documents and
the almost five-month delay at that point. And arguably, it
aggravates the more than one-month delay that still occurred
after the message. Pursuant to Rule 56, a party must support
“assertions by citing to particular parts of materials
in the record[.]” Fed.R.Civ.P.
56(c)(1)(A) (emphasis added). It is undisputed that the
disputed exhibits were not attached to the Response nor were
they found anywhere in appropriate filings. As such, they
were not “in the record” to support the Response
when it was filed nor was the error corrected in a timely
Plaintiff concedes that the exhibits to which Defendant
objects were not provided in discovery. She does not dispute
that they should have been disclosed pursuant to the
Defendant's discovery requests. She does not argue that
they were somehow immune from discovery notwithstanding her
apparent failure to object. Consequently, the failure to
provide the documents in discovery violated Rule 26.
See Fed.R.Civ.P. 26(e). Rule 37 provides that
“[i]f a party fails to provide information … as
required by Rule 26(a) or (e), the party is not allowed to
use that information … to supply evidence on a motion
… unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1). Plaintiff has utterly
failed to show that the failure was substantially justified.
Plaintiff focuses on arguing that the failure was harmless.
Exhibits H, O, P or R, she concedes that these materials were
not available to Defendant prior to the filing of her Notice
of Errata on November 16, 2018. Doc. 70 at 2.
However, she contends that receiving these materials only
days before the Motion Hearing did not harm Defendant,
because Plaintiff's original affidavit referenced the
attachments, even though it did not include them.
Id. Next, as to Exhibits A, B, D, I, J, K, L, M or
N, she argues that this failure was harmless, because these
materials, which were created by and the property of
Defendant, were already accessible by Defendant. Doc.
70 at 2. The Court is not persuaded that the failure was
harmless as to either group.
these exhibits were not tangential or minor. The significance
of these exhibits from the perspective of the Plaintiff is
apparent by the fact that they are all attachments to the
summary affidavit she presented to rebut Defendant's
motion for summary judgment. Given their import to
Plaintiff's view of her case, it is obvious that each and
every one would have been important for Defendant to have and
understand prior to their deposition of Plaintiff. Instead,
they were disclosed fourteen months after Plaintiff's
deposition was conducted and more than eight months after
discovery had closed. See doc. 50 and doc.
54, Ex. 1. The mere fact that, as to Exhibits A, B, D,
I, J, K, L, M or N, Defendant was in possession of the
documents would not alert them to the significance Plaintiff
was placing on them to support her contentions.
the exhibits were unavailable to Defendant to address in
their Reply. While this fact is obvious for Exhibits H, O, P
or R, it is, as a practical matter, true for the remainder.
Even though Defendant may have possessed some of the
documents in some form, Plaintiff's vague labeling of
certain attachments would not render them easily
identifiable. For example, in her affidavit, Plaintiff
states, “[m]issed customer service visits are a common
occurrence in the elevator service industry. TKE regularly
published ‘Missed Service Visit' lists to every
elevator service mechanic (based on their service route). See
Attachment D, Missed Service Reports for Route #5.”
Doc. 67-1 at 2. The preceding explanation would
provide Defendant with no way of knowing which months or
years of missed service reports Plaintiff was relying on to
support her argument that Plaintiff missed an ordinary number
of or fewer service visits compared to other employees. In
addition, even regarding those more identifiable attachments,
Defendant should not be made to spend hours sifting through
its archives in order to find materials relied on by
Plaintiff. This conclusion is especially true when Defendant
would reasonably (but incorrectly) assume that any document
to which Plaintiff cited had been disclosed in discovery.
the prejudicial impact on the Reply was exacerbated because
Defendant was objecting to Plaintiff's affidavit on the
basis that it was not “made on personal
knowledge” as required by Rule 56. Fed.R.Civ.P.
56(c)(4). Consequently, the particulars of the supporting
documentation were crucial to Defendant's argument. As
noted by Plaintiff, “Parties may, submit affidavits ...
in support of summary judgment, despite the fact that
affidavits are often inadmissible at trial as hearsay, on the
theory that the evidence may ultimately be presented at trial
in an admissible form.” Doc. 70 at 1 (quoting
Argo v. Blue Cross & Blue Shield of Kansas,
Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). How
Defendant presented its argument about Plaintiff's
affidavit was necessarily impacted by the failure to
disclose, let alone attach, the exhibits in a timely manner.
Furthermore, Defendant did not “hide-the-ball” on
the point given that it highlighted on May 16, 2018, that
Plaintiff had failed to attach the documents. See doc.
56 at 2 n.2.
foregoing reasons, the Court finds that the failure to
disclose Attachments A, B, D, H, I, J, K, L, M, N, O, P and R
was not harmless. Thus, the documents may not be used to
support Plaintiff's opposition to Defendant's Motion
for Summary Judgment and they will be stricken from the
record. See Fed. R. Civ. P. 37(c)(1).
addition, Defendant requests that, pursuant to Rule 37, the
Court award Defendant fees associated with drafting and
filing the instant motion. Id. at 5. Indeed,
“[i]f a party fails to provide information…as
required by Rule 26(a) or (e), [in] addition to or instead of
[the exclusion] sanction, the court…may order payment
of the reasonable expenses, including attorney's fees,
caused by the failure.” Fed.R.Civ.P. 37(c)(1)(A). The
Court has broad discretion to use sanctions to ensure that
counsel and parties fulfill their obligations. See Lee v.
Max Int'l, LLC, 638 F.3d 1318, 1320-1324 (10th Cir.
2011). Given that the court is imposing the exclusion
sanction and there is no evidence that Plaintiff or counsel
acted in bad faith, the Court will not impose further
except for the request for attorney's fees, the Court
GRANTS Defendant's Motion to Strike as to Attachments A,
B, D, H, I, J, K, L, M, N, O, P and R.