The opinion of the court was delivered by: Judge Caputo
Presently before the Court are two motions filed by Plaintiff seeking to strike various exhibits that Defendants have submitted in support of their motion for summary judgment. For the reasons discussed more fully below, Plaintiff's motion to strike the affidavits of various members of the Luzerne County Sheriff's Office (Doc. 52) will be granted in part and denied in part and the motion to "strike untimely identified expert" (Doc. 55) will be denied in part and granted in part.
Plaintiff Jane Doe filed her first Complaint on June 17, 2008. (Doc. 1.) On October 20, 2008, the parties filed a joint Case Management Plan. (Doc. 11.) Under the section labeled disclosure, which called for each party to list by name and title "each person whose identity has been disclosed," Plaintiff stated that she had disclosed "[a]ll employees and former employees of Luzerne County Sheriff's Office;" Defendants stated that they had disclosed "[a]ll persons disclosed by Plaintiff and in discovery to date."
On November 25, 2009, Plaintiff filed a Second Amended Complaint. (Doc. 29.) Plaintiff alleges that she was an employee of Luzerne County when, on September 27, 2007, she was videotaped by Defendant Ryan Foy, without her knowledge or consent, while using a decontamination shower. (Doc. 29, ¶¶ 1, 8.) Defendant Barry Stankus was the Sheriff of Luzerne County at the time and acting as an official policy-maker when he ordered Foy, who was Deputy Chief, to videotape Plaintiff. (Id. at ¶ 3.) Foy allegedly distributed the images of Plaintiff using the decontamination shower and placed copies of the images on Luzerne County computers. (Id. at ¶ 12.) Plaintiff did not learn about the videotape or the distribution of the images until a third party "came forward and told her of the same" at some unspecified date. (Id. at ¶ 14.) Plaintiff's Second Amended Complaint brought a claim for relief pursuant to 42 U.S.C. §1983 against all Defendants for violation of the Fourth Amendment and violation of privacy rights (Count I), and a claim against Luzerne County for failure to train in violation of 42 U.S.C. § 1983 (Count II).
An Amended Case Management Order was entered on December 17, 2009. (Doc. 35.) That order stated 1) that discovery would be completed by February 3, 2010, 2) that Plaintiff was to comply with the requirements for disclosure of expert witnesses pursuant to Fed. R. Civ. P. 26(a)(2) by March 4, 2010, 3) that Defendants were to comply with the requirements for disclosure of expert witnesses pursuant to Fed. R. Civ. P. 26(a)(2) by March 29, 2010, and 4) that dispositive motions were to be filed by March 29, 2010.
On December 18, 2009, Defendant Stankus filed a Motion to Dismiss, arguing that Plaintiff's claims against him were time-barred. Both parties submitted deposition evidence with their briefs. As a result, this Court issued an order converting the 12(b)(6) motion into a motion for summary judgment. (Doc. 43.)
On March 29, 2010, Defendants filed a Motion for Summary Judgment. (Doc. 45.) Defendants also filed an exhibit list in support of their motion; the exhibit list included affidavits from Jason Volciak, Eric Aigeldinger, and John Jugus, who were all employed by the Luzerne County Sheriff's Office at the time that the videotape was made. The exhibit list also included the affidavit of Defendants' expert witness G. Hunter Jones.
On April 15, 2010, Plaintiff filed a "Motion to Strike Affidavits Since the Witnesses Were Not Disclosed During Discovery and Permission to Depose Those Individuals Before Trial." (Doc. 52.) On April 30, 2010, Plaintiff filed a "Motion to Strike Untimely Identified Expert, or in the Alternative, Motion to Permit Plaintiff Time to Hire and Examine Defendants' Computers/Servers as Well as Take Defendants' Expert's Deposition." (Doc. 55.) Both motions have been fully briefed and are currently ripe for disposition.
1. Luzerne County Sheriff's Office Employees' Affidavits
Fed. R. Civ. P. 26(a)(1)(A)(i) states that "a party must,without awaiting a discovery request, provide to the other parties... 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, unless the use would be solely for impeachment." When a party fails to disclose the information required by Fed. R. Civ. P. 26(a), that party is not allowed to use the information or witness to supply evidence on a motion, "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). According to the 1993 comments to Rule 37(c), examples of the type of "harmless" failure envisioned by the Rules would be the inadvertent omission from disclosure of the name of a potential witness known to all parties or the failure to list a trial witness that was also listed by another party.
The rule leaves district courts with discretion to determine whether the omission was substantially justified or harmless. Hess Fence & Supply Co. v. United States Fidelity & Guaranty Co., No. 4:04-CV-2648, 2006 WL 3325445, at *2 (M.D. Pa. Oct. 12, 2006) (citing Newman v. GHS Osteopathic, Inc., 60 F.3d 153,156 (3d Cir. 1995)). In the Third Circuit, the factors weighed in deciding whether a failure to disclose is harmless are: (1) prejudice or surprise to party against whom evidence is offered; (2) ability of party to cure prejudice; (3) likelihood of disruption to trial; and (4) bad faith or willfulness involved in not complying with the disclosure rules. Id. at *5 (citing Newman, 60 F.3d at 156). However, "exclusion of critical evidence is an 'extreme' sanction, not normally to be imposed absent a showing of willful deception or 'flagrant disregard' of a court order by the proponent of the evidence." Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904 (3d Cir. 1977). Defendants argue that they did not violate Rule 26(a) because the joint Case Management Plan states that Plaintiff had disclosed "[a]ll employees and former employees of Luzerne County Sheriff's Office." Although the Court has no evidence whether this broad statement made by Plaintiff included the identities of Jason Volciak, Eric Aigeldinger, and John Jugus, the Defendants' responses to Plaintiff's First Set of Interrogatories do not include these individuals as people who had knowledge of the facts relating to this case. Furthermore, logically, it seems unrealistic that Plaintiff would be able to comprehensively disclose the identity of every current and former employee of the Luzerne County Sheriff's Office at such an early stage in the litigation. Conversely, it is likely that Defendants had access to payroll records and other documents that would alert them to the employees of the sheriff's office who might have discoverable information. Notably, Defendants have not submitted any evidence that the names and identities of Volciak, Aigeldinger, and Jugus were ever disclosed to Plaintiff.
Having determined that Defendants did, in fact, violate Rule 26(a), this Court must decide whether the failure to disclose the identities of Volciak, Aigeldinger, and Jugus was substantially justified or harmless. First, Plaintiff is prejudiced by Defendants' failure to disclose Volciak, Aigeldinger, and Jugus for the purposes of the summary judgment motion. Because their testimony was only presented in affidavit form, Plaintiff did not have the opportunity to depose these witnesses and potentially create genuine issues of material fact regarding the evidence they are ...