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Hecko v. Ruth's Hospitality Group, Inc.

United States District Court, S.D. California

June 21, 2019

DANIEL HECKO, Plaintiff,
v.
RUTH'S CHRIS HOSPITALITY GROUP INC., Defendant.

          ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE REGARDING DEFENDANT'S INITIAL DISCLOSURES [ECF NO. 39]

          Hon. Mitchell D. Dembin United States Magistrate Judge.

         This Joint Motion presents Plaintiffs motion for sanctions against Defendant for alleged violations of Rule 26, Fed. R. Civ. P., filed on June 18, 2019. (ECF No. 39). Specifically, Plaintiff wants Defendant to be sanctioned for failing to include in its initial disclosures under Rule 26(a)(1)(A)(ii) the “Elite Binder” used by Defendant's managers as a resource for handling certain duties; scheduling and staffing documents for the Del Mar restaurant from July 25, 2017, to November 1, 2017; and documents reflecting written performance warnings regarding Plaintiff allegedly written by Plaintiffs manager, Ms. West. Plaintiff also seeks to re-depose certain witnesses at Defendant's expense.

         LEGAL STANDARD

         Rule 26(a)(1)(A)(ii) requires each party to provide to the other parties, without a discovery request, “a copy - or a description by category and location - of all documents that the disclosing party has in its possession, custody or subject to its control and may use to support its claims or defenses.” Rule 26(e) requires a party who has made a disclosure under Rule 26(a) to supplement its disclosure

in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process....

Rule 26(e)(1)(A).

         Fed. R. Civ. P. Rule 26(g) requires that every disclosure under Rule 26(a)(1) be signed by an attorney of record. By signing, the attorney is certifying that to the best of the attorney's knowledge, information and belief formed after a reasonable inquiry, that the disclosure is complete at the time it was made. Rule 26(g)(1)(A). Sanctions may be imposed upon the signer who violates this rule without substantial justification. Rule 26(g)(3).

         Finally, Rule 37(c), Fed. R. Civ. P., provides for sanctions for failing to disclose or supplement under Rule 26(a) or (e) unless the failure is substantially justified or harmless. Rule 37(c)(1).

         DISCUSSION

         In its initial disclosures under Rule 26(a)(1)(A)(ii), Defendant identified categories of documents that it may use to support its claims and defenses. The categories included “Plaintiffs personnel file and other personnel-related documents regarding Plaintiff and his performance” and “documents relating to Plaintiff's job duties.” (ECF No. 39-2 at 8).[1]

         A. Written and Verbal Performance Warnings

         Christina West, Plaintiff's last immediate supervisor, testified in deposition that she issued a verbal and written warning to Plaintiff regarding his performance and that the verbal warning was memorialized in a writing. Defendant asserts that despite several in-depth searches, those writings cannot be located. Plaintiff provides no evidence to suggest that Defendant had and destroyed these documents in anticipation of or during this litigation.

         Plaintiff's position here is hard to fathom. These documents, if they existed, likely would benefit Defendant and harm Plaintiff. As it stands, the fact that Defendant cannot produce documentary support for a manager who has claimed that she did write up Plaintiff for deficient performance is even better for Plaintiff. Defendant cannot produce documents that are not within its possession, custody or control, despite reasonable efforts to locate them. No sanction will issue on this basis.

         B. Staffing/Scheduling Records ...


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