Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01295-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 1:04-cv-1295-LTB-CBS BETTY GALLEGOS, BERTHA PACHECO, LAURA REYES, MANUELA ARRAS, DAVID ZUBIA, ANTONIO MEZA, JESUS ARENIVAR, ALBA BARRIOS, GLORIA CAMPOS, REYNEL CARMONA, SILVIA CRUZ, JESUS ESTRADA, MARIA ISABEL FLORES, JORGE MARTINEZ, MARIA MCREYNOLDS, IGNACIO RANGEL, JUANA ROSALES, MARIA TOVAR, ANTELMO ZUNUN, MARIA ALVA, PETRONA COREAS, MARIA ESTEVEZ, ALFREDO PINEDA, CARMEN LUNA, PATTY LEHMKUHL, & LUIS OCHOA, Plaintiffs, v. SWIFT & COMPANY, Defendant. _____________________________________________________________________________ DEFENDANT'S REPLY TO PLAINTIFFS' OBJECTION TO MOTION TO EXCLUDE EVIDENCE

COMES NOW, Swift & Company ("Defendant") and for its Reply to Plaintiffs' Objection to Motion to Exclude Evidence, states as follows; INTRODUCTION The arguments contained in Plaintiffs' Objection to Motion to Exclude Evidence can be summarized as follows:

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1. Defendant; 2.

There are 283 new jobs in Plaintiffs' Supplement, not 902 as alleged by

Some of the positions were previously disclosed to Defendant in Plaintiffs'

Motions for Summary Judgment; 3. names; 4. 5. discovery. None of the foregoing arguments have merit. ARGUMENT The "Supplemental Response" contains nine hundred and two new positions. Plaintiff seeks to reduce the number by counting a position that applies to multiple Plaintiffs as one position. However, because the work restrictions of each Plaintiff and the date they were placed on medical leave are different, there are in fact nine hundred and two new positions identified when applied to each Plaintiff. However, even 283 new positions constitute a substantial modification to the responses produced nearly two years earlier. But, no matter what the number, the Supplement was untimely. Whether Plaintiffs "disclosed" some of the job positions in their Motions for Summary Judgment is not significant. Even if some of the positions were listed in their Motions, they were not supplemental responses. In fact, in its Response to Plaintiffs' Motions for Summary Judgment, Defendant requested the Court to disregard the listings as being unsupported and Defendant had access to the same information used by the Plaintiffs; and The Supplement could not have been made earlier because of the volume of Some of the positions listed are really the same as others, they just have different

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unauthenticated because they were not supported by affidavit or documentary evidence. Plaintiffs made no mention of the lists being supplements to earlier discovery in their Reply Briefs. Moreover, the disclosures took place well after the close of discovery and on the date dispositive motions were due. Thus, even if the disclosures were to be considered a supplement, they were untimely. Plaintiffs' Supplement contains all new jobs, including those which it now claims to have previously disclosed in Summary Judgment. The Supplement states: "In addition to those positions listed in prior answers to discovery . . ." (Attached as Exhibit E to Defendant's Motion). Apparently, not until Defendant filed its Rule 37(c)(1) Motion did Plaintiffs believe that the job positions listed in their Summary Judgment Motions should be considered responses to Defendant's discovery. Additionally, there was no claim in the Motions that the jobs listed were ones that Plaintiffs could perform with or without accommodation. Rather, each Plaintiff claimed that they should have been considered for positions which were allegedly vacant at some point in time during their medical leave of absence. However, claiming that a job is vacant is far different from claiming that one can perform a job. Whether some job positions are identified by different names is irrelevant. Defendant is only concerned with the named job positions that Plaintiffs identified in their discovery responses as being jobs they could perform. Whether Defendant had access to the same information or data is similarly irrelevant. It is the specific responses by Plaintiffs that are relevant. Defendant cannot be expected to guess as to which jobs each Plaintiff believed they could perform with or without accommodation.

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Defendant requested, and Plaintiffs were required to identify the jobs they believed they could perform. Finally, the violation of Rule 26(e)(2) is not substantially justified because of the volume of discovery. Plaintiffs had numerous alternatives to producing the Supplement only a few weeks before the trial is scheduled to begin. Defendant would be prejudiced by Plaintiffs' failure to seasonably supplement their Responses to Defendant's Interrogatories. DISCUSSION The only two points possibly worthy of discussion are: 1) Plaintiffs' claim that Defendant was put on notice of the supplement through their Motions for Summary Judgment; and, 2) Plaintiffs' claim that they were substantially justified in violating Rule 26(e)(2) because of the volume of information produced in discovery. A. Information Contained in a Motion for Summary Judgment is Not a Timely Supplement to Written Discovery.

Plaintiffs claim that information set forth in their Motions for Summary Judgment should be considered to be supplements to their earlier Responses to Defendant's written discovery. 1 The claim is without merit. The Interrogatory propounded to each Plaintiff was specific. It stated: Please identify each and every job you believe you could perform at Defendant's Greeley, Colorado facility without accommodation and identify each and every job you believe you could perform with accommodation and for those jobs you believe you could perform with accommodation, please identify each and every accommodation needed to perform each job. Each Plaintiff responded to the Interrogatory with a list of jobs they believed they could perform without accommodation, with the exception of one Plaintiff who claimed she could
1

Plaintiffs cite no case law in support of this proposition.

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perform one or more jobs with a stool as an accommodation. Defendant relied on those responses in preparing for deposing the Plaintiffs and in preparation for trial. In their Motions for Summary Judgment, each Plaintiff stated that some number of positions came open at the same time that Swift removed them from work due to their restrictions. The Motions went on to state, "Swift classifies these positions as the least physically demanding in the plant and can be performed within [Plaintiff's] restrictions without need to consider accommodation."2 The jobs listed for each Plaintiff in their Motions were different from those they listed in their Responses to Defendant's written discovery. However, what is missing is the most important point . . . whether each Plaintiff believed they could perform the job. The fact that there is a job within someone's physical work restrictions is far different from whether the person believes they can perform the job.3 Even Plaintiffs acknowledge the difference in wording and meaning as they stated in their Supplement, "In addition to those positions listed in prior answers to discovery, each Plaintiff could have performed the following positions with or without reasonable accommodation." (Attached as Exhibit E to Defendant's Motion, emphasis added). Plaintiffs' Supplement contains lists of jobs for each Plaintiff which include those jobs which it now claims to have previously disclosed in Summary Judgment. However, the Supplement begins by stating: "In addition to those positions listed in prior answers to discovery . . . ." (Attached as Exhibit E to Defendant's Motion). Apparently, not until Defendant filed its

Defendant requested in its Response Brief that the Court disregard the information as it was neither authenticated, nor supported by any affidavit or document. 3 Plaintiffs even in their Objection to the Motion state: "Swift has been aware since April, 2006, of the positions claimed by the Plaintiffs to be within their restriction. (emphasis added) Plaintiffs' Objection p. 2. Interestingly, there is no claim that Swift knew which jobs each Plaintiff believed they could perform.

2

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Rule 37(c)(1) Motion did Plaintiffs believe that the job positions listed in their Summary Judgment Motions should be considered responses to Defendant's discovery. Finally, both the alleged disclosure and the attempt to supplement were untimely as they came well after the close of discovery. It is well established that supplementing of discovery after the cutoff date violates Rule 26(e)(2). Harris v. Mitsubishi Heavy Industries, Ltd., 1996 U.S. Dist. LEXIS 17362 at *25 (N.D. Ill. 1996); Lubow v. Cantom, Inc., 1990 U.S. Dist. LEXIS 18037 at *3-4 (D. Kan. 1990); American Stock Exchange v. Mopex, Inc., 2002 U.S. Dist. LEXIS 25085 at *16 (S.D.N.Y. 2002); 3M Innovative Properties, Co. v. Barton Nelson, Inc., 2004 U.S. Dist. LEXIS at *9-10 (D. Minn. 2004). Here, neither the alleged disclosure, nor the Supplement, were timely. B. There is No Substantial Justification for the Unseasonable Supplement.

Plaintiffs bear the burden of showing that the violation of Rule 26(e)(2) was substantially justified and harmless. Sender v. Mann, 225 F.R.D. 645, 653 (D. Colo. 2004). As noted in Defendant's opening Brief, there are four factors that should guide the Court in making the determination of whether a violation of Rule 26(e)(2) is substantially justified and harmless. Woodworker's Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999). The four factors are: 1) prejudice or surprise to Defendant; 2) the ability of the party to cure the prejudice; 3) the extent to which introducing such information would disrupt the trial, and; 4) the non-moving party's bad faith or willfulness. All four factors weigh in favor of Defendant. Defendant would be prejudiced by the substantial Supplement as it comes on the eve of trial and the prejudice cannot be cured by merely reopening discovery. Defendant re-deposing each Plaintiff would be exceedingly expensive and the potential damages would continue to

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accrue. The trial would be disrupted by the new information because the attempt to determine if jobs were vacant preceding or subsequent to the placing of each Plaintiff on medical leave would be problematic and time consuming. While it is difficult to judge the bad faith or willfulness of Plaintiffs, clearly they knew or should have known of the need to supplement their responses months if not years before attempting to do so. However, Plaintiffs waited until the week before the scheduled date for the submission of a pre-trial order and the pre-trial conference to produce it. The sole excuse proffered for the unseasonable Supplement is the volume of discovery. Plaintiffs were aware of the volume of discovery when Defendant produced the documents nearly two years ago. The excuse does not rise to the level of a substantial justification for violation of Rule 26(e)(2), nor is the violation harmless. CONCLUSION Rule 26(e)(2) requires a party to seasonable amend a prior response to an interrogatory, request for production, or request for admission if the party learns that in some material respect the response was incomplete or incorrect. Rule 37(c)(1) mandates exclusion from evidence information that has not been seasonably submitted. Here, Plaintiffs submitted Supplemental Responses to Interrogatories nearly two years after the discovery was tendered, and more than ten months after the close of discovery. Plaintiffs claim the substantial justification exception is applicable because of the volume of information produced nearly two years ago. Plaintiffs violated Rule 26. There is no substantial justification for the violation. Therefore, the materials Plaintiffs submitted on January 2, 2007 as a Supplement to written discovery, must be excluded from evidence, at trial, at a hearing, or on a motion.

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Respectfully submitted this 22nd day of January, 2007.

s/ W. V. Bernie Siebert W. V. Bernie Siebert Leslie Abernathy Johnson SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Tel: (303) 297-2900 Fax: (303) 298-0940 [email protected] [email protected] Attorneys for Defendant Swift & Company

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 22nd day of January 2007, I electronically filed the foregoing DEFENDANT'S REPLY TO PLAINTIFFS' OBJECTION TO MOTION TO EXCLUDE EVIDENCE with the clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses:

Britton Morrell at [email protected] Todd McNamara at [email protected]

s/ Clarine Kuntz

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