The opinion of the court was delivered by: R. Steven Whalen United States Magistrate Judge
District Judge Marianne O. Battani
Magistrate Judge R. Steven Whalen
Plaintiff originally filed this case in the Oakland County, Michigan Circuit Court, pursuant to Michigan's Whistleblowers' Protection Act, M.C.L. § 15.316, et seq. Defendant removed the case to this Court on August 5, 2008, under 28 U.S.C. § 1332 (diversity jurisdiction). Before the Court is Plaintiff's Motion to Strike Defendant's Supplemental Rule 26 Disclosures, Second Amended Answers to Interrogatories, and Second Amended Responses to Requests to Produce [Docket #41]. Oral argument was held on March 23, 2010. For the reasons discussed below, Plaintiff's Motion will be GRANTED.
Trial in this case is scheduled to begin on April 19, 2010. On February 3, 2010, Defendant served Plaintiff with supplemental initial disclosures under Fed.R.Civ.P. 26(a), second amended interrogatory responses, and second amended responses to Plaintiff's requests to produce. The supplemental Rule 26 disclosures reveal for the first time that there are six other employees Defendant contends were terminated for the same reason it fired Plaintiff, that is, pursuing a suspected shoplifter "in a manner that created a safety risk to himself," in violation of Home Depot's Asset Protection Policy. See Plaintiff's Motion [Docket #41], Exhibit F, with attached documents numbered 1 to 17. Defendant stated in the supplemental disclosure that "Documents numbered 1 to 17 [were] discovered by Elsa Verrier...." Id. These newly revealed witnesses and incidents are also referenced in Defendant's supplemental responses to interrogatories and document requests. Id., Exhibits G and H.
The following chronology is pertinent to this Motion: On August 28, 2008, Defendant served its initial Rule 26 disclosures, along with answers to interrogatories and document requests. In its disclosures, Defendant identified Elsa Verrier as a possible witness, stating, "Ms. Verrier, a current employee, may testify to her employment by Home Depot generally, Plaintiff's employment, Home Depot's policies and procedures, and admissions by Plaintiff, as well as other matters relevant to this litigation." Plaintiff's Brief [Docket #41], Exhibit A.
On October 27, 2008, Defendant served amended responses to interrogatories and requests to produce. In response to Interrogatory #2, Defendant identified Elsa Verrier as "an Associate Relations Manager who Ms. Dees consulted during the investigation." Id., Exhibit D; Defendant's Response [Docket #45], Exhibit 3, p.5. Ms. Dees was the District Human Resources Manager who "was responsible for drafting Plaintiff's termination Discipline Notice." Id., p.4.
The original discovery cut-off date was February 6, 2009. This was extended twice, with the final discovery cut-off being May 7, 2009. Eleven depositions were taken, and a substantial amount of written discovery appears to have been exchanged.
On June 12, 2009, Defendant filed a motion for summary judgment, which was denied on October 21, 2009.
On January 14, 2010, a settlement conference was held. Ms. Verrier appeared on behalf of Defendant as the person with settlement authority.
On February 3, 2010, Defendant produced the supplemental discovery at issue in this motion.
A party is required to identify, as part of its Rule 26 initial disclosures, all individuals "likely to have discoverable information ... that the disclosing party may use to support its claims or defenses ...." Fed.R.Civ.P. 26(a)(1)(A)(I). Rule 26(e) requires ...