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Patel v. Gen. Motors Co.

2022 WL 19974796 (E.D. Mich. 2022)

October 25, 2022

Goldsmith, Mark A., United States District Judge

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Summary

The court denied the plaintiff's request for more detailed ESI under Rule 26(a) and also denied the plaintiff's request to expand the defendants' obligations under Rule 26(a). The court also denied the plaintiff's request for sanctions.

Additional Decisions

RIKEN PATEL, Plaintiff,
v.
GENERAL MOTORS COMPANY, et al., Defendants

Case No. 22-cv-10742

United States District Court, E.D. Michigan, Southern Division, SOUTHERN DIVISION

Signed October 25, 2022

Counsel

Chris Chekan, McTavish Law PLC, Bloomfield Hills, MI, for Plaintiff.
Donald Campbell Bulea, Lauren Harrington, Ogletree Deakins Nash Smoak & Stewart, PLLC, Birmingham, MI, for Defendant A Delaware Company General Motors Company.
Donald Campbell Bulea, Lauren Harrington, Ogletree Deakins Nash Smoak & Stewart, PLLC, Birmingham, MI, Scott McLaughlin, Ogletree Deakins, Houston, TX, for Defendants Michael Skehan, Kevin McCabe, General Motors LLC.

Goldsmith, Mark A., United States District Judge

ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (Dkt. 19) AND STRIKING DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO COMPEL (Dkt. 27)

*1 In this employment discrimination action, Plaintiff Riken Patel moves to compel Defendants General Motors LLC, Michael Skehan, and Kevin McCabe to supplement their initial disclosures made under Federal Rule of Civil Procedure 26(a)(1) (Dkt. 19). For the following reasons, the Court denies Patel's motion in part and grants his motion in part. The Court also strikes Defendants' response to Patel's motion (Dkt. 27).[1]

The Court addresses each of Patel's requests in turn.

A. Disclosure of Home Telephone Numbers and Addresses

As part of its initial disclosures, a party must provide “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.” Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added).

Defendants have identified eight former or current GM employees under Rule 26(a). See Def. Suppl. Initial Disclosures at 3–5 (Dkt. 27-1). They provided the home addresses and telephone numbers for former employees and the work addresses and telephone numbers for current employees. See id. Patel argues that Defendants must disclose the home contact information for all eight individuals. See Pl. Br. in Supp. Mot. at 7–9. Defendants argue that Patel has no need of personal contact information, as any communications should properly pass through counsel.

Patel is correct that Defendants are obligated to produce home telephone numbers and addresses for individuals identified under Rule 26(a).[2] Any concern that Patel will use this information improperly does not defeat Defendants' disclosure requirements, as the Court will not “indulge in speculation” that counsel will do anything other than “abide by the canons of legal ethics.” Dixon, 164 F.R.D. at 689. Plaintiff's counsel has “legitimate reason[s]” for seeking this information, including for the purpose of “conducting background investigations of key witnesses,” Hartman, 2010 WL 1882002, at *2; for example, a home address may help distinguish an identified witness from an individual with a similar or identical name, and work contact information may become useless if a current employee leaves his or her employer during the course of litigation. The Court, therefore, directs Defendants to disclose, to the extent known, the home addresses and telephone numbers of the individuals disclosed under Rule 26(a).

B. Inclusion of Amad Subashi in Rule 26(a) Disclosures

*2 One GM employee not identified in Defendants' Rule 26(a) disclosures is Amad Subashi, an individual referenced in an investigation report disclosed as part of Defendants' initial disclosures. See Ex. to Pl. Mot. at PageID.416 (Dkt. 19-1).[3] Patel contends that Defendants are obligated to include Subashi's contact information in their initial disclosures because Defendants represent that they will rely generally on “ ‘[a]ny current and former employees of GM who may have knowledge of ... facts relating to [Patel's] allegations ...,’ ” and Patel thinks that Subashi falls into this category. Pl. Br. in Supp. Mot. at 3 (quoting Ex. to Pl. Mot. at PageID. 403). Defendants protest that they do not currently intend to rely on Subashi to “support [their] claims or defenses,” Fed. R. Civ. P. 26(a)(1)(A)(i), and so they are not obligated to list him in their Rule 26(a) disclosures.

Defendants are correct that they do not need to include an individual in their initial disclosures if they do not intend to use that individual to support their claims or defenses. See McCormick v. Brzezinski, No. 08-cv-10075, 2008 WL 4371842, at *1 (E.D. Mich. Sept. 22, 2008) (denying motion to compel, explaining that “Defendants need only bring forward as initial disclosures those enumerated items which Defendants intend to use in support of a claim or defense,” and noting that the “advisory committee's note also emphasizes that ‘[a] party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use’ ”) (quoting Fed. R. Civ. P. 26(a) advisory committee's note) (emphasis added). Defendants bear the risk of declining to list an individual in their initial disclosures whom they may later wish to use in support of their defense. If Patel seeks more information on Subashi, he will have the opportunity to request that information through discovery. The Court denies Patel's request on this point.

C. Electronically Stored Information

Patel asserts that Defendants are obligated to disclose specific information about their electronically stored information (ESI), specifically—“what data is stored on a party's computer systems, how data is stored on a party's computer systems, who uses a party's computer systems, how data is backed up or archived on a party's computer systems, and the document retention and destruction policies of a party's computer systems.” Pl. Br. in Supp. Mot. at 10–11.

Rule 26(a) does not require the intricate level of disclosure demanded by Patel at this early stage of litigation. Defendants are required to provide “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that [Defendants] ... may use to support [their] claims or defenses ....” Fed. R. Civ. P. 26(a)(1)(A)(ii).

Patel relies on two cases: Parrottino v. Bankers Life & Cas. Co., No. 12-cv-13084, 2014 WL 1516195, at *6 (E.D. Mich. Apr. 17, 2014) and Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., No. 09-cv-11783, 2011 WL 1002835, at *4 (E.D. Mich. Feb. 17, 2011). But Parrottino and Nissan were not cases about the scope of Rule 26(a)'s disclosure requirements. The Parrottino court granted a party's request for a Rule 30(b)(6) deposition with a corporate representative knowledgeable about the opposing parties' ESI. 2014 WL 1516195, at *6. The Nissan court denied a request for a protective order—filed after extensive discovery and the court's entry of an order requiring the movant to identify un-searched sources of ESI—that would have freed the movant from the obligation to produce a “data map” on its ESI policies. 2011 WL 1002835, at *4. The references to Rule 26(a) in these cases—addressing different issues at more advanced stages of the proceedings—do not stand for the principle that Rule 26(a) requires Defendants to produce more than “a copy” or “a description by category and location” of the applicable ESI as part of their initial disclosures. Fed. R. Civ. P. 26(a)(1)(A)(ii).

*3 If Patel seeks more information on Defendants' ESI policies, he may do so after the completion of initial disclosures—for example, by requesting a Rule 30(b)(6) deposition. See Parrottino, 2014 WL 1516195, at *6. The Court denies Patel's request for more detailed ESI information under Rule 26(a).

D. Disclosure of Additional “Supporting Documents”

Defendants represent that they will rely on the investigation report identified above in support of their defense. See Ex. to Pl. Mot. at PageID.405. This report—describing allegations made against Patel before his termination—states that the documents reviewed in preparing the report included “[s]upporting documents on feedback.” Id. at PageID.416. Patel argues that Defendants are required to produce a copy or description by category and location of these “supporting documents.” Pl. Br. in Supp. Mot. at 12. Defendants argue that they have already done so—in the form of the report itself and Patel's personnel files—and that they will produce any additional supporting documents as they become aware of them.

Defendants have satisfied their Rule 26(a) obligations as to the identification of the supporting documents. Defendants bear the risk of not being able to rely on any non-disclosed documents in support of their defense at a later stage of the litigation, and Patel will have the opportunity to seek documents in support of his own claims through discovery. The Court denies Patel's request to expand Defendants' obligations under Rule 26(a).

E. Sanctions

Patel requests sanctions under Rule 16, Rule 37, and this Court's inherent authority, all of which grant this Court the discretion to impose sanctions. See Pl. Br. in Supp. Mot. at 13–18. This Court declines to sanction Defendants for disclosing work contact information instead of home contact information for current GM employees. Defendants' error on this point also does not merit sanctions under Patel's alternate proposed basis of Rule 26, which requires the imposition of sanctions where an attorney improperly certifies that a disclosure is complete and correct to the best of that attorney's knowledge after reasonable inquiry. See Fed. R. Civ. P. 26(g)(1), (3). The Court denies Patel's request for sanctions.

For the reasons explained above, Patel's motion (Dkt. 19) is granted in part and denied in part. Defendants must supplement their initial disclosures by disclosing the home telephone numbers and home addresses of individuals identified under Rule 26(a), to the extent known, within seven days of the entry of this order. Defendants' response to Patel's motion (Dkt. 27) is stricken.

SO ORDERED.

Detroit, Michigan

Footnotes

[1]

In addition to Patel's motion and Defendants' response, the briefing includes Patel's reply (Dkt. 30). The Court held a hearing on Patel's motion on October 13, 2022. Defendants' response is not compliant with the local rules because it does not contain (i) a concise statement of the issues presented or (ii) the controlling or most appropriate authority. See E.D. Mich. LR 7.1(d)(1)–(2). Accordingly, the Court strikes Defendants' response. See 4/14/22 Order (Dkt. 3).

[2]

Courts have consistently held that Rule 26(a) requires the disclosure of home addresses and telephone numbers. See, e.g., Rodriguez v. Christus Spohn Health Sys. Corp., No. C-09-95, 2011 WL 13351118, at *2 (S.D. Tex. Oct. 3, 2011) (“The decisions interpreting Rule 26 make it clear that the home addresses and telephone numbers, if known, are required to be produced.”); Hartman v. Am. Red Cross, No. 09-1302, 2010 WL 1882002, at *2 (C.D. Ill. May 11, 2010) (“Defendant must disclose the home addresses and personal telephone numbers for all current employees that Defendant has disclosed as witnesses with pertinent information ....”); Thurby v. Encore Receivable Mgmt., Inc., 251 F.R.D. 620, 620 (D. Colo. 2008) (requiring that defendant's Rule 26(a)(1) disclosures include “the home addresses and home and cellular telephone numbers for ... three employees of Defendant ....”); Dixon v. Certainteed Corp., 164 F.R.D. 685, 689 (D. Kan. 1996) (“[Defendant] may not satisfy [its Rule 26(a)(1)] obligation by disclosing its business address and phone number, unless it knows of no other address and number.”); see also Miller v. Gentry, No. 1:16-cv-707, 2018 WL 11243682, at *3 (W.D. Mich. Apr. 25, 2018) (noting that Thurby “requir[ed] an employer to disclose the home address and telephone numbers for three of its employees who were identified in the initial disclosures”) (citing Thurby, 251 F.R.D. at 621). Defendants identify one case to the contrary, see Brunson v. State Farm Fire & Cas. Co., No. 07-2320-MAV, 2008 WL 11320266, at *2 (W.D. Tenn. June 18, 2008)), but other courts have declined to follow this approach, and this Court adopts the majority position.

[3]

Patel compiled multiple documents, including Defendants' initial disclosures and other documents submitted with those initial disclosures, into this single filing.