United States District Court, E.D. Pennsylvania
ELLEN M. (MINDY) SOLOTAR
NORTHLAND HEARING CENTERS, INC. t/a ALL AMERICAN HEARING
BARCLAY SURRICK, J.
before the Court is Plaintiffs Motion to Compel Defendant to
Identify Its Trial and Declaration Witnesses and Bar
Defendant From Relying Upon Any Document Produced After the
Discovery Deadline. (ECF No. 13.) For the following reasons,
Plaintiffs Motion will be denied.
Plaintiff Ellen M. (Mindy) Solotar filed a Complaint against
her former employer, Defendant Northland Hearing Centers,
Inc., trading as All American Hearing ("NHC"),
alleging that she was discriminated against and ultimately
fired by Defendant because of her advanced age, in violation
of the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621-634. (Compl. ¶¶ 37-40, ECF No. 1.)
During discovery, Solotar served NHC with requests for
admissions and production of documents, in part to obtain
information concerning the performance and treatment of
employees who were similarly situated to Solotar. (Mot. to
Compel & Bar ¶¶ 7-8.) These requests sought to
determine if other NHC employees had failed to meet their
quotas for performing certain work tasks, as Solotar is
alleged to have done, and to determine if those other
employees were treated the same as Solotar, i.e.,
were they fired like Solotar was for allegedly not meeting
her quotas. (Id. ¶¶ 3-4, 7-8, Ex.'s E,
F.) In response to the requests for admissions concerning the
similarly-situated employees, NHC responded,
After having made reasonable inquiry, the information
Defendant currently knows or can obtain is insufficient to
enable it to admit or deny this request. Defendant is
continuing to search for information that will enable it to
admit or deny this request and reserves the right to
supplement this response accordingly.
(Id. at Ex. E ¶¶ 2, 3, 5, 6, 8, 9.) When
Solotar asked NHC to produce the documents it relied on in
responding to the requests for admission regarding the
similarly-situated employees, NHC responded,
After having made reasonable inquiry, Defendant obtained
insufficient information to enable it to admit or deny many
of the Requests for Admissions .... Defendant continues to
search for information that will enable it to (a) admit or
deny the Requests for Admission and/or, correspondingly (b)
produce documents responsive to this request. In that regard,
Defendant reserves the right to supplement its response to
(Id. at Ex. F ¶¶ 1-4.) An NHC
representative has since testified at a deposition that NHC
has looked for the documents but has not been able to find
them, with a few limited exceptions. (Id. ¶ 8;
Ex. G.) NHC claims that it has learned that some of this
information was never uploaded into NHC's electronic
filing system, and it has been unable to locate hard copy
employee files for some of the employees identified by
Solotar. (Def.'s Reply ¶ 14, ECF No. 14.)
5, 2017, a Scheduling Order was entered which provided, among
other things, that the parties serve upon each other a list
of their proposed trial witnesses and a brief summary of
their testimony, on or before February 15, 2018. (ECF No. 9.)
The Scheduling Order also set a trial date of March 5, 2018.
(Id.) On October 17, 2017, a telephone conference
was conducted with the parties concerning a discovery dispute
related to the deadlines set out in the Scheduling Order.
(ECF No. 11.) During the conference, Solotar was directed to
file a formal motion to compel to resolve the discovery
October 23, 2017, Solotar filed the instant Motion. That same
day, Plaintiffs counsel notified Defense counsel via email
that Solotar was amending her answers to Defendant's
First Set of Interrogatories. (Decl. Phinorice Boldin Ex.
A-l, ECF No. 15.) On August 30, 2017, in response to
Defendant's interrogatory asking which witnesses Solotar
planned to call at trial, Solotar originally answered,
Plaintiff has not yet made a decision as to trial witnesses.
At present, Plaintiff intends to call each of the witnesses
identified in the Answer to Interrogatory no. 2. Plaintiff
intends to identify other potential witnesses during the
course of discovery and will provide trial witnesses [sic]
information in accordance with the applicable Federal Rules
of Civil Procedure and the Local Rules.
(Def.'s Reply Ex. A at Int. ¶ 3.) In the October 23
email from Plaintiffs counsel to Defense counsel, Plaintiffs
answers to Defendant's interrogatories were amended to
include the identification of three more witnesses "with
information as to Plaintiffs claims and whom Plaintiff
intends to call at trial; and ... there are no other
witnesses whom Plaintiff intends to call at trial."
(Decl. Boldin Ex. A-l.)
October 30, 2017, NHC filed a Reply to the instant Motion.
(Def.'s Reply.) On November 1, 2017, Solotar filed a
Sur-Reply. (Pl.'s Sur-Reply, ECF No. 18.)