*1 This matter is before the Court on Defendant Konica Minolta Business Solutions U.S.A., Inc.’s Motion to Exclude Untimely Produced Affidavit. (Dkt. 43.) Defendant Konica Minolta Business Solutions U.S.A. (“Defendant” or “KMBS”) seeks an order from the Court excluding the Affidavit of Steve Jankowski, which was produced after the close of discovery by Plaintiffs Jennifer D. Mustful and Laurence M. Mustful, including excluding for purposes of supporting or opposing a dispositive motion. For the reasons stated below, this Motion is denied.

Plaintiffs’ Amended Complaint alleges that Defendant discriminated against Ms. Mustful and Mr. Mustful because of their marital status and engaged in unlawful reprisals against the Mustfuls because they opposed Defendant's allegedly unlawful practices in violation of the Minnesota Human Rights Act, Minn. Stat. §§ 363A.01-.44 (“MHRA”); and also alleges Defendant terminated their employment in retaliation for Ms. Mustful's and Mr. Mustful's reports/complaints about discrimination and other unlawful conduct, in violation of the Minnesota Whistleblower Act, Minn. Stat. §§ 181.931-.935 (the “MWA”). (Dkt. 11 ¶¶ 18, 19, 23, 29, 35, 42, 50, and 57.) Part of the facts underpinning the claims include allegations that Ms. Mustful's former supervisor, Jeff Zellmer (“Zellmer”), who was the Minneapolis, Minnesota branch Area Vice President of KMBS, used Ms. Mustful's marital status and marriage to Mr. Mustful to adversely affect Mr. Mustful's employment, which culminated with Ms. Mustful's, and ultimately Mr. Mustful's, unlawful termination. (Id. ¶¶ 3-19.)

Under the Court's Second Amended Scheduling Order, fact discovery was to be commenced in time to be completed on or before July 30, 2019. (Dkt. 40 at 1.) The dispositive motion deadline is September 30, 2019. (Id.)

Steve Jankowski (“Jankowski”) is the individual whose Affidavit is the subject of the present motion. (Dkt. 43.) Jankowski was an Area Vice President of the Greater Milwaukee Area branch office of Defendant from March 2016 until his employment terminated in April 2019. (Dkt. 50-1, Ex. 3 ¶¶ 2, 8.) In their July 31, 2018 Initial Disclosures, Plaintiffs did not identify Jankowski as an individual likely to have discoverable information that they may use to support their claims.[1] (Dkt. 48-1, Ex. A.) Plaintiffs did identify in their Initial Disclosures “[o]ther presently unidentified employees and/or customers of Defendant who are identified in the parties’ investigation and/or discovery.” (Id. at 3.)

In its August 1, 2018 Initial Disclosures, Defendant identified Jankowski as an individual who may have information regarding complaints relating to Mr. Mustful's job performance. (Dkt. 50 ¶ 2.) In Defendant's November 28, 2018 Answers to Plaintiffs’ First Set of Interrogatories, Defendant identified Jankowski as a person “known to or believed by Defendant to have knowledge or information of [ ] facts concerning the allegations in Plaintiffs’ Amended Complaint and Jury Demand and/or Defendant's Answer to Amended Complaint.” (Id. ¶ 3 (alterations in original).) Defendant's Answer to Plaintiffs’ Interrogatory No. 2 stated that “[a]ll facts known to Mr. Jankowski are unknown to the Defendant at this time; however, Mr. Jankowski is expected to have information regarding complaints about Mr. Mustful's job performance.” (Id.)

*2 At the hearing, Defendant's counsel believed that Jankowski may have been interviewed by in-house counsel, but stated that litigation counsel had not had any contact with Jankowski. Defendant's counsel suggested at the hearing that Jankowski was not interviewed because he had been terminated by Defendant, but admitted that Jankowski had been employed by Defendant until around April 2019, for several months after this case was removed to federal court on June 1, 2018.

On July 22, 2019, Mr. Mustful testified during his deposition that Jankowski communicated to him sometime in 2017 that Zellmer wanted the Mustfuls “gone.” (Dkt. 50-1, Ex. 1 at 173-74.) Mr. Mustful also testified at the deposition that Jankowski had not directly told him that Zellmer wanted Ms. Mustful gone because of her marriage to Mr. Mustful. (Id. at 175-76.)

Plaintiffs’ counsel represented that Mr. Mustful learned at some unspecified point new information from Jankowski that Zellmer had told Jankowski that he wanted to get rid of Mr. Mustful as soon as possible, that he had fired Ms. Mustful to send a message to Mr. Mustful and to inflict some pain on him, and that he had instructed his Minneapolis branch salespersons not to sell any production print using Mr. Mustful. (Dkt. 50 ¶ 4.) According to Plaintiffs’ counsel, on July 26, 2019, he drafted and sent to Jankowski for his review a draft written statement/affidavit to recount and memorialize his conversations with Zellmer in 2017 that related to Ms. Mustful and/or Mr. Mustful. (Id. ¶ 5.) Counsel did not immediately follow up with Jankowski regarding the draft affidavit.

On July 30, 2019, Plaintiffs disclosed Jankowski in their unverified supplemental interrogatory answers as a witness they contend supports their claims. (Dkt. 48-1 at 46-50.)

Plaintiffs’ counsel also represented in his Affidavit to the Court that Mr. Mustful contacted Jankowski in early August 2019 (after the parties’ July 31, 2019 settlement conference) to inquire about the status of Jankowski's review of the draft affidavit, and was informed by Jankowski that there were certain changes Jankowski intended to make (without identifying the same). (Dkt. 50 ¶ 8.) Jankowski told Mr. Mustful that he had been busy in his new employment which he had recently begun and that he would attempt to return the written statement/affidavit to as soon as possible. (Id.)

Plaintiffs’ counsel further represented that he finally received an email from Jankowski with a signed Affidavit on August 12, 2019. (Dkt. 50 ¶ 9.) Plaintiffs’ counsel produced to Defendant, via email, the Affidavit of Steve Jankowski (“Jankowski Affidavit”) on the same day. (Dkt. 48-1 at 53-54.)

The Jankowski Affidavit provided as follows:

(Dkt. 48-1 at 55-58 (emphasis added).)

At the hearing, Defendant's counsel stated that the content of paragraph 6, namely that Jankowski would say that Zellmer fired Ms. Mustful to “send a message” to and “inflict some pain” on Mr. Mustful, was new information that had not been previously disclosed in discovery. She also stated that Defendant believed paragraph 6 was the only evidence in the case that could constitute direct evidence of discrimination.

*4 Defendant brought the present Motion to exclude the Jankowski Affidavit three days after it was served, on August 15, 2019.

A party's duty to supplement its discovery responses is set forth as follows in Federal Rule of Civil Procedure 26(e)(1):

As set forth in Federal Rule of Civil Procedure 37(c)(1), “[i]f a party fails to provide information ... as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” In addition to or instead of such exclusion, a court may impose other sanctions, including “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed. R. Civ. P. 37(c)(1)(C), 37(b)(2)(A)(ii).

When determining whether exclusion of the information contained in an untimely supplement is warranted, the Eighth Circuit has in similar circumstances approved of the use of a “balancing test” by which a court is to “evaluate[ ] the importance of the evidence to the [plaintiff], the justifications for [its] failure to comply [with the requirements of Rule 26], the prejudice to the [defendant] if the evidence were allowed to be used, and whether a continuance would effectively cure the prejudice.” Carmody v. Kansas City Bd. of Police Comm'rs, 713 F.3d 401, 405 (8th Cir. 2013) (quoting Citizens Bank of Batesville, Ark. v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir. 1994)); see also Steady State Imaging, LLC v. Gen. Elec. Co., No. 017CV01048 (JRT/KMM), 2018 WL 2047578, at *3 (D. Minn. May 2, 2018) (citations omitted) (applying a similar balancing test). A court's “discretion to fashion a remedy or sanction” is “wide,” but “narrows as the severity of the sanction or remedy ... increases.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). Furthermore, “if ‘striking the [untimely evidence] would be tantamount to dismissal,’ the court is to consider ‘lesser sanctions’ before excluding it.” Longlois v. Stratasys, Inc., 88 F. Supp. 3d 1058, 1078 (D. Minn. 2015) (quoting Carmody, 713 F.3d at 405, quoting Keefer v. Provident Life & Accident Ins. Co., 238 F.3d 937 (8th Cir. 2000)). “Generally speaking, federal courts favor resolution of cases on their merits over the imposition of drastic, tactical sanctions.” Byrd v. J Rayl Transp., Inc., No. 13-CV-2279 (RHK/LIB), 2014 WL 12647772, at *2 (D. Minn. Oct. 3, 2014) (citing Chrysler Corp. v. Carey, 186 F.3d 1016, 1020 (8th Cir. 1999)).

A. Timeliness

*5 The Court first considers whether Plaintiffs identified Jankowski and produced his Affidavit “in a timely manner.” See Fed. R. Civ. P. 26(e)(1)(A). Plaintiffs argue that timeliness is not an issue here because Defendant identified Jankowski in their discovery responses, Mr. Mustful testified at his July 22, 2019 deposition about what Jankowski told him regarding Zellmer, and Plaintiffs supplemented their interrogatory responses on July 30, 2018, the date of the close of discovery, to identify Jankowski. (Dkt. 49 at 10-12.) “[T]imeliness under Rule 26(e)(1)(A) is measured from ‘the date when the facts are discovered, not some nebulous date when counsel first realized that there was some significance to them.’ ” Longlois, 88 F. Supp. 3d at 1077 (quoting Havenfield Corp. v. H & R Block, Inc., 509 F.2d 1263, 1272 (8th Cir. 1975)). Here, Mr. Mustful testified at his deposition that he had been told sometime in 2017 by Jankowski that Zellmer communicated to him he wanted the Mustfuls “gone.” (Dkt. 50-1, Ex. 1 at 173-74.) Yet, Plaintiffs made no attempts to identify or provide any information regarding Jankowski's knowledge until near the end of discovery.

This Court understands that Plaintiffs contend that they did not learn about the information in paragraph 6 of the Affidavit until they received the signed Affidavit back from Jankowski on August 13, 2019. Further, Plaintiffs’ counsel represented that he was not aware of Jankowski's significance until Mr. Mustful's deposition on July 22, 2019. However, this does not fully explain why Plaintiffs and their counsel waited until four days before the end of discovery to determine what Jankowski knew or attempt to obtain the Affidavit. They could have deposed Jankowski while he was Defendant's employee and certainly could have reached out to him in the second quarter of 2019, when Mr. Mustful became aware that Jankowski was no longer employed by Defendant (Dkt. 50 ¶ 4), well before the July 30, 2019 discovery cut-off. Plaintiffs chose instead to wait until four days before the end of discovery to attempt to obtain information from Jankowski for use in this case. Plaintiffs claimed in the opposition that they considered deposing Jankowski within the discovery period but were unable to do so because Mr. Jankowski was in the process of beginning new employment, which made his participation in a deposition difficult. (Dkt. 49 at 14 n.4.) Even so, Plaintiffs’ decision to take Jankowski's employment situation into account was done at their own risk. Further, Plaintiffs could have avoided this motion by seeking more time from the Court to depose Jankowski before the expiration of discovery. In sum, while the Court finds no evidence of bad faith on the part of Plaintiffs, it concludes that their resulting supplementations were not timely.

B. Precluding the Use of the Jankowski Affidavit Is Not Appropriate in this Case

The Court next considers whether to exclude the use by Plaintiffs of the Jankowski Affidavit, including for the purpose of supporting or opposing a dispositive motion. In making this determination, the Court considers the importance of the evidence to Plaintiffs, the justifications for Plaintiffs’ failure to comply with the requirements of Rule 26, the prejudice to Defendant if the Jankowski Affidavit is not stricken, and whether a continuance would effectively cure the prejudice. See Longlois, 88 F. Supp. 3d at 1078; Steady State Imaging, 2018 WL 2047578, at *3 (citations omitted).

The Court finds these considerations weigh in favor of allowing Plaintiffs to use the Jankowski Affidavit. The parties both contend that the primary issue in relation to the Jankowski Affidavit is paragraph 6 where Jankowski represented:

*6 (Dkt. 48-1 at 55-58 (emphasis added).)

Defendant does not argue that the Jankowski Affidavit is not important to Plaintiffs. To the contrary, Defendant's reasoning behind moving to preclude the Affidavit's use is its position “this is a blatant attempt to create a factual issue to impact upon Defendant's planned summary judgment motion.” (Dkt. 45 at 7.) At the hearing, Defendant's counsel acknowledged that Defendant believed that until Plaintiffs served the Jankowski Affidavit, Plaintiffs had no direct evidence of marital status discrimination, requiring Plaintiffs to rely on circumstantial evidence and proceed under the McDonnell-Douglas burden-shifting framework applicable to their MHRA claims.[3] See generally, Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (reprisal); Gunnufson v. Onan Corp., 450 N.W.2d 179, 182 (Minn. Ct. App. 1990) (marital status discrimination).

As to Defendant's prejudice, they contend that Plaintiffs’ conduct constitutes trial by ambush and represented at the hearing that they have already drafted their motion for summary judgment materials based on the facts available at the end of discovery. While Plaintiffs’ disclosures were late, as set forth above, the Court finds no evidence of tactics by Plaintiffs that would call into doubt their explanation for the late discovery. Moreover, while Defendant complains about trial by ambush, Defendant knew Jankowski may have information relevant to the case at least as early as their July 31, 2018 Initial Disclosures—when he was still Defendant's employee—yet trial counsel appears to have never contacted him to see what information he may have had regarding Zellmer's motivation (if any) for the several months before his April 2019 termination. In other words, it appears both parties were not diligent with the development of the facts in this case.

In any event, the Court finds that the prejudice to Plaintiffs should the Jankowski Affidavit be excluded outweighs Defendant's assertion of trial by ambush given that any such prejudice can be cured by an extension of the pretrial schedule and permitting Defendant to subpoena Jankowski for a deposition and to conduct additional discovery as it relates to the Affidavit. At the hearing, the Court asked Defendant's counsel what discovery it would need to address the Jankowski Affidavit. Defendant's counsel asserted that it would at least need to depose Jankowski. Counsel also mentioned deposing unnamed employees so as to demonstrate that Jankowski had an ulterior motive for making the statements in his Affidavit.

*7 To that end, the Court will amend the Second Amended Pretrial Scheduling Order to allow an additional two months from the date of this Order for Defendant to conduct discovery relating to the information contained in the Jankowski Affidavit. Plaintiffs will be allowed to examine any witnesses deposed by Defendant. However, Plaintiffs may not initiate any further discovery. If Defendant seeks additional discovery beyond the deposition of Jankowski, the parties shall meet and confer regarding that additional discovery. If they cannot reach agreement regarding any additional discovery, the parties shall promptly contact the undersigned's chambers to set up a status call regarding the dispute. The Court will extend the other deadlines in the Second Amended Pretrial Scheduling Order accordingly, including the dispositive motion deadline. While additional discovery will inherently require the expenditure of additional resources by the parties and require Defendant to edit their summary judgment papers, such limited expenditures are reasonable under the facts in this case so as to ensure that the case is decided on its merits.

For all of these reasons, Defendant's motion to exclude the Jankowski Affidavit is denied.

C. Plaintiffs’ Request for PST Files from Defendant

As part of their opposition to Defendant's motion, Plaintiffs have sought their own relief from the Court. Specifically, Plaintiffs request that Defendant re-produce emails produced by it as part of this Court's Order compelling discovery dated March 26, 2019 (Dkt. 36) as a PST file or some other form so as to enable Plaintiffs to efficiently and effectively search, access, review, and manage the documents produced by Defendant. (Dkt. 49 at 15-17.) Defendant for its part has represented that it does not have the ability to produce PST files. The Court construes Plaintiffs’ request as a new request for relief given that the format for the production of discovery was never at issue as part of their first motion to compel. (See Dkt. 25.) Plaintiffs will need to bring a separate motion for relief. The parties, consistent with the Local Rules, will be required to meaningfully meet and confer to resolve this issue without Court involvement prior to any further motion practice.

Based on the files, records, and proceedings herein, IT IS ORDERED THAT:

1. Defendant Konica Minolta Business Solutions U.S.A., Inc's Motion to Exclude Untimely Produced Affidavit (Dkt. 43) is DENIED.

2. A separate Third Amended Pretrial Scheduling Order consistent with this Order will be issued by the Court.

3. Plaintiffs’ request to compel Defendant to produced PST files is DENIED without prejudice.