MILLEN et al v. GEORGIA RENEWABLE POWER LLC et al, No. 3:2021cv00042 - Document 37 (M.D. Ga. 2022)

Court Description: ORDER granting in part and denying in part 34 Motion in Limine Ordered by US DISTRICT JUDGE CLAY D LAND on 09/16/2022 (CCL)
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MILLEN et al v. GEORGIA RENEWABLE POWER LLC et al Doc. 37 Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION AGNES MILLEN, et al., * Plaintiffs, * vs. * GEORGIA RENEWABLE POWER, LLC, et al., * CASE NO. 3:21-CV-42 (CDL) * Defendants. * O R D E R Plaintiffs filed a motion to exclude thirteen witnesses disclosed by Defendants Georgia Renewable Power, LLC and GRP Franklin, LLC (“GRP Defendants”) on or shortly before the August 15, 2022 discovery deadline. Plaintiffs contend that these witnesses were not timely disclosed under the Federal Rules of Civil Procedure or the Court’s Rules 16/26 Order. As discussed below, the motion to exclude (ECF No. 34) is granted in part and denied in part. Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires a party to disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses.” Rule 26(e) disclosures requires “in a a timely party to supplement manner . . . if the its initial additional or Dockets.Justia.com Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 2 of 8 corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” R. Civ. P. 26(e)(1)(A). Fed. The Court issued a Rules 16/26 Order in this action, which states that when supplementation under Rule 26(e) is required, “supplemental responses shall be served upon the opposing information party within requiring the fourteen days supplemental of learning response, of the unless the Court otherwise extends the supplemental response period upon Rules 16/26 Order 6, ECF No. 10. motion of a party.” Under Rule 16(b)(3), a scheduling order may modify the timing of Rule 26(e) disclosures, fourteen-day rule requirement. days of which means trumps Rule that the 26(e)’s Rules more 16/26 general Order’s “timely” Thus, if supplementation occurs within fourteen learning supplementation is of the timely. supplemental If a party information, fails to the identify a witness as required by 26(e), “the party is not allowed to use that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure to identify was substantially justified or harmless. On August 4, Fed. R. Civ. P. 37(c)(1). 2022, eleven days before the discovery deadline, the GRP Defendants supplemented their Rule 26(a)(1) initial disclosures to add the following individuals as people who may have discoverable information on the GRP Defendants’ defenses: Stacy Anderson, Susan 2 Hart, James Russell Huffman, Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 3 of 8 Quang Le Hung, Huong L. Nguyen, Frank Ginn, and Beth Thomas. The GRP Defendants submitted another supplement to their initial disclosures on August 15, 2022, the discovery deadline. In that supplemental disclosure, the GRP Defendants disclosed additional individuals as people who may have discoverable information on the GRP Defendants’ McDonald, Alan defenses: Powell, Billy Tonya Morse, Powers, Harris Lauren Little, “Bubba” and John Phillips. The GRP Defendants contend that the supplemental disclosure of Billy Morse, Harris Little, and John Phillips on August 15, 2022 was timely because the GRP Defendants did not learn that these individuals may have discoverable information until the morning of August 15, 2022, when they were identified during the telephone Defendants interview of disclosed another all witness. three of Therefore, these witnesses the GRP within fourteen days of learning their identities, so their disclosure was timely under the 16/26 Order. Similarly, the GRP Defendants argue that the supplemental disclosure of Alan Powell on August 15, 2022, was timely because he was not mentioned as someone with discoverable information until the deposition of the GRP Defendants’ 30(b)(6) witness on August 9, 2022. The 30(b)(6) witness from testified that he learned else, but he did not say when. about Powell someone There is no indication in the present record that the GRP Defendants learned about Powell more 3 Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 4 of 8 than fourteen days before his identity was disclosed to Plaintiffs, so the Court cannot conclude that the disclosure was untimely. exclude For these reasons, the Court denies the motion to Alan Powell, Billy Morse, Harris Little, and John Phillips. Turning to the other nine witnesses that were disclosed in August 2022, the GRP Defendants do not seriously dispute that they learned the identities of these witnesses more fourteen days before the relevant supplemental disclosure. than The GRP Defendants argue, though, that these nine witnesses were “made known” to Plaintiffs during discovery, so even if their supplemental Again, disclosure Rule was 26(e)(1)(A) untimely, it requires was not required. supplemental initial disclosures “if the additional or corrective information has not otherwise been made known to the discovery process or in writing.” other parties during the The GRP Defendants argue that formal supplements should not be required if a potential witness is mentioned in a deposition or in documents produced during discovery. In support of this argument, the GRP Defendants cite one unpublished district court order where the judge concluded in a during footnote that discovery the because witnesses they were were adequately “identified by deponents and in documents produced to plaintiffs.” v. Forsyth Cnty. Sch. Dist., 4 No. 2:06-CV-78-WCO, disclosed various Wilbourne 2008 WL Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 5 of 8 11417233, at *3 n.7 (N.D. Ga. Mar. 20, 2008). Wilbourne does not witnesses explain provided how much during the information about depositions—whether the they were was merely mentioned or were, in the words of the judge, “identified.” Thus, even if Wilbourne were sufficiently persuasive, it does not support Defendants’ argument.1 The Court understands that the 1993 advisory committee’s note to Rule 26(e) states that a previously unidentified witness is “made known” if she is “identified during the taking of a deposition.” 1993 Fed. R. Civ. P. 26(e) advisory committee’s note to amendment (emphasis added). Again, Rule 26(a)(1)(A) requires disclosure of the name of each individual “that the disclosing party may use to support its claims or defenses,” along with the subject matter of that person’s information. So, the disclosing party must put the other side on notice that it may rely on the individual as a witness. witness simply mentioning a person The Court finds that a in a deposition does not disclose that a party may rely on that person to support its claims or defenses, so it does not demonstrate that the individual was “made known” as a potential witness under Rule 26(e). Likewise, the fact that 1 a person’s name appears in Defendants also rely on an unpublished report and recommendation by a federal magistrate judge, but it does not support Defendants’ argument because it was clear that the disputed witnesses were all disclosed in interrogatory responses well before the close of discovery. Nix v. McMaster Carr Supply Co., No. 117CV02785SCJJFK, 2018 WL 7348862, at *2 (N.D. Ga. Dec. 27, 2018). 5 Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 6 of 8 documents produced in response to document requests does not demonstrate that the individual was “made known” as a potential Accordingly, the Court rejects the GRP Defendants’ witness. argument that the nine witnesses were “made known” to Plaintiffs simply because they were mentioned in depositions and in documents produced during discovery. The GRP Defendants did not establish that they first learned of nine of the potential witnesses within fourteen days of disclosing them in August 2022 (Stacy Anderson, Susan Hart, James Russell Huffman, Quang Le Hung, Huong L. Nguyen, Frank Ginn, Beth Thomas, Tonya Powers, and Lauren “Bubba” McDonald). Rather, these the GRP Defendants potential witnesses acknowledge well that before they knew disclosing about them. Furthermore, they not only waited more than fourteen days to disclose expiration them, but deadline. they The disclosed GRP them Defendants at the knew discovery about Stacy Anderson and Susan Hart by March 3, 2022, when their expert completed and served his case study regarding Anderson’s property; they were aware of James Russell Huffman when he was hired to handle day-to-day operations of the plant in February or March 2022; they learned about Quang Le Hung and Huong L. Nguyen by June 2022, when a GRP employee mentioned them during a deposition; and they were aware of Frank Ginn, Beth Thomas, Tonya Powers, and Lauren “Bubba” McDonald 6 by 2019, when GRP Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 7 of 8 executives communicated with them multiple times about neighbor concerns regarding the plant. Thus, these witnesses were not timely disclosed as required by Rule 26(e) and the 16/26 Order. The GRP Defendants did not establish that their failure to disclose these nine witnesses was substantially justified—they pointed to no reason why they could not have complied with the disclosure deadline. the disclosure was And the failure was not harmless because done at the very end of discovery, so Plaintiffs could not conduct any discovery regarding these nine witnesses. For these reasons, the GRP Defendants are not permitted to use the following witnesses to supply evidence on a motion, at a hearing, or at trial: Stacy Anderson, Susan Hart, James Russell Huffman, Quang Le Hung, Huong L. Nguyen, Frank Ginn, Beth Thomas, Tonya Powers, and Lauren “Bubba” McDonald. CONCLUSION For the reasons set forth above, Plaintiffs’ motion to exclude (ECF No. 34) is granted to the extent that the GRP Defendants shall not be permitted to use the following witnesses to supply evidence on a motion, at a hearing, or at trial: Stacy Anderson, Susan Hart, James Russell Huffman, Huong L. Nguyen, Frank Ginn, Beth Thomas, Lauren “Bubba” McDonald. Quang Le Hung, Tonya Powers, and The Court declines to impose other sanctions. 7 Case 3:21-cv-00042-CDL Document 37 Filed 09/16/22 Page 8 of 8 The motion is denied to the extent that the GRP Defendants shall not be precluded from using the following witnesses to supply evidence: Alan Powell, Billy Morse, Harris Little, and John Phillips. proposed The parties shall confer and agree on a jointly amendment to the scheduling order for the limited purpose of allowing written discovery and depositions regarding these newly disclosed witnesses. deadline remains unchanged. The dispositive motion The Court plans to try this action during its May 2023 Athens trial term. IT IS SO ORDERED, this 16th day of September, 2022. S/Clay D. Land CLAY D. LAND U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 8