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Solotar v. Northland Hearing Centers, Inc.

United States District Court, E.D. Pennsylvania

December 20, 2017

ELLEN M. (MINDY) SOLOTAR
v.
NORTHLAND HEARING CENTERS, INC. t/a ALL AMERICAN HEARING

          MEMORANDUM

          R. BARCLAY SURRICK, J.

         Presently 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.

         I. BACKGROUND

          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 this Request.

(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.)

         On July 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 dispute. (Id.)

         On 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.)

         On 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.)

         II. ...


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