Case 2:11-cv-00926-JTM-JCW Document 329 Filed 09/04/12 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, v. Civil Action No. 2:11-cv-00926-JTM- JCW Section H TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants. PLAINTIFFS EX PARTE MOTION FOR LEAVE OF COURT TO FILE PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL MAY IT PLEASE THE COURT: Plaintiffs LUTHER SCOTT, JR. and LOUISIANA STATE CONFERENCE OF THE NAACP (collectively, Plaintiffs ), through their undersigned counsel, file this ex parte motion to request leave of this Court to file a Reply Memorandum in Support of Plaintiffs Motion To Strike Undisclosed Documents and Declarations Filed by Defendants. Dated: September 4, 2012 Respectfully submitted, /s/ Sarah Brannon Sarah Brannon (sbrannon@projectvote.org)* Niyati Shah (nshah@projectvote.org)*
Case 2:11-cv-00926-JTM-JCW Document 329 Filed 09/04/12 Page 2 of 3 Michelle Rupp (mrupp@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC 20005 202-546-4173 *MOTION FOR ADMISSION PRO HAC VICE GRANTED Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* Dale E. Ho (dho@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson St., Suite 1600 New York, NY 10013 212-965-2200 *MOTION FOR ADMISSION PRO HAC VICE GRANTED Ronald Lawrence Wilson (cabral2@aol.com) Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA 70139 504-525-4361 Michael B. de Leeuw (michael.deleeuw@friedfrank.com)* Israel David (israel.david@friedfrank.com)* Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY 10004 *MOTION FOR ADMISSION PRO HAC VICE GRANTED Attorneys for Plaintiffs 2
Case 2:11-cv-00926-JTM-JCW Document 329 Filed 09/04/12 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on September 4, 2012, I electronically filed the foregoing with the Clerk of court by using the CM/ECF system which will send a notice of electronic filing to counsel of record who are registered participants of the Courts CM/ECF system. I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to counsel of record who are not CM/ECF participants as indicated in the notice of electronic filing. /s/ Sarah Brannon Sarah Brannon (sbrannon@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC 20005 202-546-4173 *MOTION FOR ADMISSION PRO HAC VICE GRANTED Counsel for Plaintiffs 3
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 1 of 11 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, v. Civil Action No. 2:11-cv-00926-JTM-JCW Section H TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants. PLAINTIFFS REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE UNDISCLOSED DOCUMENTS AND DECLARATIONS FILED BY DEFENDANTS Plaintiffs Luther Scott, Jr. and Louisiana State Conference of the NAACP (collectively, Plaintiffs ) file this consolidated Reply Memorandum of Law in support of Plaintiffs Motion to Strike (Doc. 315). Defendants have offered no factual or legal justification for why the mandatory exclusion of all evidence subject to the Motion to Strike, pursuant to Federal Rule of Civil Procedure 37(c), should not apply. Defendants untimely introduction of this evidence particularly in light of their unpersuasive explanations for doing so smacks of unfair and improper gamesmanship that this Court should not countenance. Further, Defendants attempts to impugn the character of Mr. Scott while making incendiary and unfounded accusations against Mr. Scott and Plaintiffs counsel are even less appropriate and less persuasive. The Motion to Strike should be granted and sanctions awarded. 1
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 2 of 11 ARGUMENT I. DEFENDANT GREENSTEIN MISCONSTRUES RULE 37(C) AND FAILS TO PRESENT ANY PERSUASIVE REASON WHY HIS UNDISCLOSED DECLARANTS AND DOCUMENT SHOULD NOT BE STRICKEN a. Defendant Greenstein s Undisclosed Declarants Should Be Stricken Defendant Greenstein ignores the text of Rule 37(c) in arguing that his undisclosed declarants should not be stricken from the record. Greenstein claims that because he does not intend to call [the declarants] as witnesses at the trial, Rule 37(c) does not require exclusion of their declarations. Greenstein s Mem. in Op. to Pls. Mot. to Strike Declarations and Documents and for Sanctions (the Greenstein Op. ), at 6. However, Rule 37(c) expressly states that [i]f a party fails to... identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that... witness to supply evidence on a motion. Fed. R. Civ. P. 37(c) (emphasis added). Thus, Greenstein s argument against exclusion of the declarations of the undisclosed declarants rests on a fundamental misunderstanding of the controlling rule and is without merit. Furthermore, the claim that neither Greenstein nor his counsel even knew the names of [his employees] prior to August, 2012, (Greenstein Op., at 4), is neither relevant nor credible, insofar as he could have discovered their names with even minimal diligence. This is particularly so, given that Greenstein believes these declarations to be crucial to [his] defense. Greenstein Op., at 8. The relevant question is not whether Greenstein knew about these witnesses, but instead whether he complied with his discovery obligations to investigate and identify all potential witnesses within his control who might have discoverable evidence. See Adv. Comm. Notes to 1993 Amendment to Fed. R. Civ. P. 26(a) (noting that reasonably available means information known to a party, its agents and counsel, as well as information obtainable through reasonable investigation.) As employees of the Louisiana Department of 2
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 3 of 11 Health and Hospitals ( DHH ), all of these individuals are within Defendant Greenstein s control. Defendant Greenstein offers no explanation for why he could not have determined which of his employees might have discoverable evidence about NVRA procedures at DHH before the close of the discovery deadline. All the information addressed in these declarations relates to policy and procedures since August 2011; clearly, there was sufficient time. Moreover, the content of the declarations address policies and procedures that Defendant Greenstein has known are at issue since the Plaintiffs filed their Complaint in April of 2011. There is no reason why Defendant Greenstein could not have learned the names of these individuals earlier and provided them during the course of discovery, as required by Rule 26. Accordingly, the undisclosed declarations should be stricken. b. Defendant Greenstein s Undisclosed Document Should Be Stricken Defendant Greenstein s arguments against exclusion of his undisclosed document are also unavailing. Indeed, he concedes that this document was responsive to Plaintiffs document request, and that he cannot meet three of the four factors established by the Fifth Circuit to determine whether his failure to disclose was substantially justified or harmless. See, e.g., CQ Inc. v. TXU Mining Co., 565 F.3d 268, 280 (5th Cir. 2009). He acknowledges that there was no excuse for his failure to disclose, Greenstein Op., at 8; that a continuance is inappropriate here, Greenstein Op., at 11; and that the document is not only unimportant but irrelevant to this case, Greenstein Op., at 5. Given that all of these factors weigh against Defendant Greenstein, even assuming arguendo that the prejudice to Plaintiffs would be minimal (which Plaintiffs by no means concede), this Court should not countenance [Greenstein s] failure to comply with the scheduling order deadlines, which is behavior this Court is not eager to encourage. Red Dot Bldgs. v. Jacobs Tech., Inc., No. 11-1142, 2012 U.S. Dist LEXIS 78957, at *14 (E.D. La. June 3
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 4 of 11 12, 2012). II. DEFENDANT JOHNSON PROVIDES NO PERSUASIVE REASON AS TO WHY THE UNDISCLOSED DECLARATIONS AND DOCUMENTS SHOULD NOT BE STRUCK FROM THE RECORD a. Defendant Johnson s Undisclosed Declarants Should Be Stricken. Like Defendant Greenstein, Defendant Johnson makes the irrelevant and insufficient argument that counsel, did not know one of her declarants (Yolanda Ash) had discoverable information with respect to Plaintiff Scott s standing until July 31, 2012. Johnson s Mem. in Op. to Pls. Mot. to Strike Declarations and Documents and for Sanctions (the Johnson Op. ), at 7. As stated above and in Plaintiffs Motion To Strike, Defendants cannot claim that they were unaware of information possessed by their very own employees and then be allowed to profit from their lax discovery practice. See Albemarle Corp. v. Chemtura Corp., No. 05-1239-JJB- SCR, 2008 U.S. Dist. LEXIS 120509 (M.D. La. June 23, 2008) (granting sanctions, noting [t]hese documents [produced weeks after the close of discovery] were created and/or maintained by the defendant's employees. If the defendants were not aware of the existence of these documents, their ignorance was entirely self-imposed. Defendants put on blinders and now seek to excuse their conduct because they cannot see. ). In another attempt to evade her discovery obligations, Defendant Johnson improperly attempts to shift the burden of her discovery obligations to the Plaintiffs, stating that Plaintiffs should not be surprised that Defendant Johnson would submit declarations from DCFS staff that served Plaintiff Scott. Johnson Op. at 7. Defendant Johnson is correct that Plaintiffs should not be surprised to be receiving declarations from individuals who worked with a named plaintiff in this case. The surprise, however, is that this information was not made available to Plaintiffs 4
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 5 of 11 until after the close of discovery. 1 Finally, Rule 26 makes clear that it is the producing party s responsibility to produce all persons and documents that the producing party may use to support its claims or defenses, unless the use would be solely for impeachment. See Fed. R. Civ. P. 26(a) ( a party must, without awaiting a discovery request, provide to the other parties.... (emphasis added)). Defendant Johnson attempts to turn this rule on its head, placing the onus on Plaintiffs by arguing, for example, that Plaintiffs should recognize that sbanks is a DCFS worker who likely has information relevant to Plaintiff Scott. This is simply not how civil discovery works. It is Defendant Johnson s obligation to produce individuals who may have discoverable information. Defendant Johnson failed in his discovery obligation and offers no reasonable justification for this failure. Defendant Johnson cites to one New York case to support the idea that preclusion of testimony is a drastic measure. Johnson Op. at 6. Louisiana courts, however, take violations of Rule 26 very seriously, making clear that they are no trifling matter... [and] [i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. Red Dot Bldgs. v. Jacobs Tech., Inc., No. 11-1142, 2012 U.S. Dist LEXIS 78957, at *14 (E.D. La. June 12, 2012) (citing Fed. R. Civ. P. 26). 1 To the extent that Defendant Johnson claims to rely on any declarations or documents for impeachment purposes, that is irrelevant here. The issue and subject of the Motion to Strike is whether Defendants can use any of this untimely evidence on the merits of their case. They cannot, as Rule 37(c)(1) mandates exclusion. If the Court were to admit the declarations or document for impeachment purposes, Plaintiffs request under Rule 105 of the Federal Rules of Evidence that the Court limit their use solely to impeachment. See Fed. R. Evid. 105 ( If the court admits evidence that is admissible... for a purpose but not... for another purpose the court, on timely request, must restrict the evidence to its proper scope.... ); cf. Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 266 (5th Cir. 1980) (holding a limiting instruction in error where it did not adequately instruct the jury to restrict its use of testimony to the purposes for which it was properly admissible). 5
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 6 of 11 b. Defendant Johnson s Undisclosed Documents Should Be Stricken Defendant Johnson does not dispute that her undisclosed documents were responsive to Plaintiffs discovery requests and should have been produced to Plaintiffs. Forgoing the wellestablished rules of discovery and adherence to Court-ordered discovery deadlines, Defendant Johnson instead attempts to reinterpret Rule 26(e)(2) to excuse the fact she did not comply with discovery deadlines, arguing that it is acceptable to turn over documents whenever a party finds discoverable material regardless of set schedules, deadlines, and the duty to conduct a reasonable search so long as such disclosure is made within a reasonable period of time between the responding party becoming aware of the incomplete or incorrect disclosure. Johnson Op. at 14. This is simply not the law: but for certain limited exceptions which do not apply in this case, disclosure must be made within the discovery period, or exclusion is mandatory. See Red Dot Bldgs., 2012 U.S. Dist. LEXIS 78957, at *8. Defendant Johnson, in fact, is clearly aware that this is not the law because in her opposition, she cites the commentary to the Federal Rules of Civil Procedure and states that the duty to disclose reasonably available information includes not only disclosure of information known to a party, its agency and counsel but also information obtained through reasonable investigation. Doc. 324, at pg. 7. Defendant Johnson goes on for pages describing the relevance of these documents, yet never attempts to answer the single meaningful question: Why were these documents not uncovered and produced during the course of discovery? The answer is obvious. If Defendant Johnson had properly reviewed all documents in her possession or control per the document requests, these documents would have been produced before discovery had closed. Any reasonable investigation would have led Defendant Johnson to discovery these 6
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 7 of 11 materials. For example, any reasonable amount of investigation would have resulted in finding all the documents in Mr. Scott s case file, whether located at the central office or the Orleans Parish office Defendant Johnson was certainly aware that all of Mr. Scott s interactions with DCFS took place at the Orleans Parish office. Furthermore, one of the items that Plaintiffs seek to strike is the updated policy C-200/C-210. See Doc. 297-14. This is part of the DCFS administrative policy manual that specifically addresses the NVRA. A 2010 version of this policy was produced during discovery, but apparently the policy was updated in March of 2012. See id. Defendant Johnson claims that this updated policy was not produced during discovery because counsel was unaware that it existed until after the close of discovery when counsel started to work on drafting the opposition to the Motion for Summary Judgment. 2 Doc. 324, at p. 16. Any amount of reasonable investigation and due diligence about their discovery obligations would have ensured that counsel was aware that the main policy governing NVRA compliance had been updated in March of 2012, and would have ensured that this document was produced to Plaintiffs during discovery. If Plaintiffs had received these documents during the course of discovery, they could have been the subject of cross examination and further discovery. Now it is too late, as discovery has long ago closed. III. DEFENDANT SCHEDLER HAS NOT DEMONSTRATED THAT IT IS IMPROPER TO EXCLUDE ALL OF THE LATE-PRODUCED DECLARATIONS AND DOCUMENTS As an initial matter, Defendant Schedler does not even attempt to argue that Plaintiffs 2 It should be noted that the changes in Policy C-200/210 between 2010 and 2012, while not material to any issues raised in the Plaintiffs Motion for Summary Judgment, are significant. See C-200/C-210 policy dated September 1, 2011, Ex. 43 to Pls. Consolidated Reply Mem. Of Law in Supp. of Mot. for Summ. J.; C-200/C-210 policy dated March 1, 2012, Def. Johnson s Ex. 13, (Doc. 297-14). The fact that counsel for DCFS claims that they were not aware that this new version existed until drafting the opposition to the Motion for Summary Judgment sometime in late July or early August means that significant changes were made months earlier to the main policy governing all issues in this litigation without any involvement of DSCF s counsel office. While not relevant to the issue as to whether this Motion to Strike should be granted, it does raise some very serious questions about the level of compliance and oversight occurring at DCFS that such revisions occurred without any involved or awareness of DCFS lawyers, particular given that this litigation was pending at the time. 7
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 8 of 11 Motion to Strike should not be granted, but instead attempts to deflect Plaintiffs arguments by attacking the Plaintiffs, in particular Mr. Scott. 3 Defendant Schedler offers no reason why Rule 37 s mandatory exclusion of this new, untimely evidence should not apply. See Red Dot Bldgs., 2012 U.S. Dist. LEXIS 78957, at *8 ( [e]xclusion of the evidence [under Rule 37(c)(1)] is mandatory and automatic unless the party demonstrates substantial justification or harmlessness. (citing Caskey v. Man Roland, Inc., 83 F.3d 418 (5th Cir. 1996)) (emphasis added). Defendants improper introduction of these pieces of evidence, which Defendants knew to exist prior to the close of discovery, is a blatant attempt to turn the trial into a game of blind man s bluff a purpose the Federal Rules of Civil Procedure will not tolerate. Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978) (quoting United States v. Procter & Gamble, 356 U.S. 677, 682 (1958)); see also Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993); Holton v. S & W Marine, Inc., Civ. No. 00-1427, 2000 WL 1693667, at *4 (E.D. La. Nov. 9, 2000). Yet Defendant Schedler not only urges this Court to ignore and even endorse the Defendants attempt at trial by ambush by flouting the Federal Rules of Civil Procedure, he has the audacity to question the motives and conduct of Plaintiffs in moving to strike evidence that was improperly withheld and untimely produced in plain contravention of Rules 26 and 37. This Court should see through this smokescreen and strike the unproduced declarants and documents. In light of Defendants failure to raise any meritorious opposition to Plaintiffs motion, Defendant Schedler goes on to argue that Document 309-5, even if excluded with respect to Defendants Greenstein and Johnson, should be admitted for his purposes. In other words, 3 For the sake of brevity, Plaintiffs will not here address the numerous unsubstantiated, misleading, and incendiary comments levied against Mr. Scott in the oppositions. Any discrepancies in Mr. Scott s declarations and testimony are not only immaterial, but also have been more than adequately explained in Plaintiffs Consolidated Reply Memorandum in support of Plaintiffs Motion for Summary Judgment on Liability, Doc. 321-1, at 26-31. 8
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 9 of 11 Defendant Schedler argues that he should be able to profit from his co-defendant s improper discovery conduct. This would lead to a result fully at odds with the purpose of the Federal Rules, and relevant case law. Sanctions for discovery lapses pursuant to Rule 37 have repeatedly been applied to multiple co-parties, regardless of whether all parties being sanctioned were themselves responsible for the lapses at issue. See, e.g., Payne v. Exxon Corp., 121 F.3d 503, 510 (9th Cir. 1997) ( If Congress had intended to limit the district court s dismissal authority to claims against the party who propounded discovery, it would not have chosen such sweeping language. (emphasis added)). The Defendants are united in interest: they are all charged with similar violations of the NVRA and have worked together in defending this lawsuit. To allow Defendant Schedler to use any of the unproduced evidence merely because a document happened to be in the custody of DCFS or DHH leads to an absurd result and would encourage precisely the sort of gamesmanship that the Federal Rules of Civil Procedure were aimed at preventing. See Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978). Indeed, to find that Rule 37(c) sanctions against one party could not apply to a co-party united in interest would encourage parties to withhold evidence from their adversaries and rely on the fact that their co-parties could adduce undisclosed material at trial regardless. This result simply cannot be justified. Defendant Schedler cannot shift the blame to DCFS and then reap the benefits of DCFS s failure to comply with its discovery obligations. Plaintiffs respectfully request that this Court grant Plaintiffs Motion to Strike and exclude the new documents and declarations, award costs for making this motion, and impose whatever additional sanctions the Court in its discretion deems appropriate. 9
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 10 of 11 Respectfully submitted, /s/ Sarah Brannon Sarah Brannon (sbrannon@projectvote.org)* Niyati Shah (nshah@projectvote.org)* Michelle Rupp (mrupp@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC 20005 202-546-4173 *MOTION FOR ADMISSION PRO HAC VICE GRANTED Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* Dale E. Ho (dho@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson St., Suite 1600 New York, NY 10013 212-965-2200 *MOTION FOR ADMISSION PRO HAC VICE GRANTED Ronald Lawrence Wilson (cabral2@aol.com) Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA 70139 504-525-4361 Michael B. de Leeuw (michael.deleeuw@friedfrank.com)* Israel David (israel.david@friedfrank.com)* Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY 10004 *MOTION FOR ADMISSION PRO HAC VICE GRANTED Attorneys for Plaintiffs 10
Case 2:11-cv-00926-JTM-JCW Document 329-1 Filed 09/04/12 Page 11 of 11 CERTIFICATE OF SERVICE I hereby certify that on the 4th of September, 2012, I electronically filed the foregoing Memorandum in Support of Motion to Strike Declarations and Documents Filed by Defendants Johnson and Greenstein and for Sanctions with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to persons electronically noticed. I further certify that I mailed the foregoing document and the notice of electronic filing by first class mail to any non-cm/ecf participant. /s/ Sarah Brannon Sarah Brannon (sbrannon@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC 20005 202-546-4173 *MOTION FOR ADMISSION PRO HAC VICE GRANTED 11 8735867
Case 2:11-cv-00926-JTM-JCW Document 329-2 Filed 09/04/12 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, v. Civil Action No. 2:11-cv-00926-JTM- JCW Section H TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants. ORDER Considering Plaintiffs Motion to file a Reply Memorandum in Support of Plaintiffs Motion To Strike Undisclosed Documents and Declarations Filed by Defendants: IT IS ORDERED that the motion is GRANTED. This day of, 2012. JUDGE, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA