I. SUMMARY

*1 Pending before this Court is Defendant Schneider Electric IT Corporation's Motion to Compel Responses to Plaintiff's Supplemental Rule 26(a)(1) Disclosures and Request for Evidentiary and Monetary Sanctions (“Defendant's Motion”) which is currently set for hearing on May 30, 2023 at 10:00 a.m. (Docket No. 30).[1] Defendant's Motion essentially seeks (1) an order compelling Plaintiff to supplement his initial disclosures by producing multiple items referenced by Plaintiff during his deposition (“Subject Records”); (2) an order imposing evidentiary sanctions; and (3) an order imposing monetary sanctions. (Notion of Motion at 1; Defendant's Memo at 4; Proposed Order at 1-2).

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds Defendant's Motion to be appropriate for decision without oral argument, vacates and takes off calendar the hearing on Defendant's Motion, and submits it for decision.

Based upon the Court's consideration of the record, the parties' submissions in connection with Defendant's Motion, and the pertinent facts and law, and for the reasons explained below, the Court denies Defendant's Motion without prejudice.

II. BACKGROUND

On September 28, 2021, Plaintiff filed the Original Complaint in Los Angeles County Superior Court Case No. 21STCV35696 against multiple Schneider Electric entities, asserting claims for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation of Cal. Gov't Code § 12940, et seq.; (3) Disability Discrimination; (4) Failure to Prevent Discrimination; (5) Failure to Accommodate Physical Disability in Violation of Cal. Gov't Code § 12940(m); (6) Failure to Engage in Good Faith Interactive Process in Violation of Cal. Gov't Code § 12940(n); and (7) Unfair Competition. (Docket No. 1-1). On November 3, 2021, Defendants filed an Answer, and on November 5, 2021, Defendants removed the case to Federal Court, initiating the instant action. (Docket No. 1).

On November 8, 2021, the then-assigned District Judge issued an Order Setting Scheduling Conference which set the Scheduling Conference for January 10, 2022. (Docket No. 10).

On December 27, 2021, the parties filed a Joint Rule 26(f) Report which, among other things: (1) identifies as witnesses: Plaintiff Michael Glasman; Defendants' employees, including Katy White; Plaintiff's treating physician(s) regarding his disability and need for accommodations; and (4) Plaintiff's expert witness regarding psychological damages; (2) identifies as key documents: Communications between Plaintiff and Defendants regarding his perceived or actual disability and any discussion regarding Plaintiff's potential return to work; Electronic or written correspondence from Defendants concerning Plaintiff; Defendants' scheduling reports identifying Plaintiff's work hours; and documents reflecting Defendants' compensation to Plaintiff, including wages and commissions; and (3) indicates that the parties will make their initial disclosures within fourteen (14) days of the Scheduling Conference pursuant to Fed. R. Civ. P. 26(a)(1)(C). (Docket No. 11).

*2 On March 8, 2022, Plaintiff's counsel emailed Defendants' counsel “Plaintiff's Initial Disclosures,” apparently without accompanying documents. (Giamela Ex. A). Although the Court has been supplied with certain documents that Plaintiff later produced as part of his initial disclosures (see Giamela Exs. A, B, D), it has not been supplied with Plaintiff's March 8, 2022 Initial Disclosures which, in light of other documents in the record, the Court presumes, includes a narrative describing/identifying documents that Plaintiff may use to support his claims or defenses.

On April 20, 2022, the case was reassigned to the currently assigned District Judge. (Docket No. 19). On the same date, the parties stipulated to Plaintiff's filing of a First Amended Complaint naming Schneider Electric IT Corporation as a Defendant in this action and removing the other named Defendants from the pleading, and on May 5, 2022, the District Judge approved such stipulation. (Docket Nos. 18, 21).

On May 6, 2022, Plaintiff filed the operative First Amended Complaint against a single named Defendant, Schneider Electric IT Corporation (“Defendant”),[2] and Does 1-100, again asserting claims for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation of Cal. Gov't Code § 12940, et seq.; (3) Disability Discrimination; (4) Failure to Prevent Discrimination; (5) Failure to Accommodate Physical Disability in Violation of Cal. Gov't Code § 12940(m); (6) Failure to Engage in Good Faith Interactive Process in Violation of Cal. Gov't Code § 12940(n); and (7) Unfair Competition. (Docket No. 22).

In a May 6, 2022 email, Defendant's counsel requested that Plaintiff provide a copy of the documents identified “section 2” of Plaintiff's Initial Disclosures. (Giamela Ex. A).

On May 20, 2022, Defendant filed an Answer to the First Amended Complaint. (Docket No. 24).

On May 31, 2022, the District Judge issued a Scheduling Order setting multiple deadlines, including March 9, 2023 as the non-expert discovery cut-off, and April 13, 2023 as the last day to hear motions. (Docket No. 26; Schelly Decl. ¶ 2; Schelly Ex. 2).

By an email dated May 24, 2022, Plaintiff's counsel responded to Defendant's counsel's May 6, 2022 email requesting initial disclosure documents, and sent Defendant's counsel “responsive documents,” numbered MG0001-MG0028. (Giamela Decl. ¶ 3; Giamela Ex. A). On June 16, 2022, Plaintiff's counsel emailed Defendant's counsel “Plaintiff's supplemental document production” attaching documents numbered MG0029-MG0037. (Giamela Decl. ¶ 4; Giamela Ex. B).

On September 9, 2022, Defendant served via email its Request for the Production of Documents, Set One (“Document Requests” or “RFP(s)”) and its Special Interrogatories, Set One (“Interrogatories”) on Plaintiff. (Giamela Decl. ¶ 5; Giamela Ex. C).

On September 19, 2022, Plaintiff's counsel emailed Defendant's counsel another “supplemental document production,” attaching documents numbered MG0038-MG0043. (Giamela Decl. ¶ 6; Giamela Ex. D).

On December 12, 2022, Plaintiff served via email objections-only responses to the Document Requests and Interrogatories. (Giamela Decl. ¶ 7; Giamela Ex. E).

On March 8, 2023, the District Judge approved the parties' Joint Stipulation to Continue Pre-Trial Dates Related to Discovery and Expert Disclosures, continued the non-expert discovery cut-off to April 7, 2023, and left intact the previously set date of April 13, 2023 as the last date to hear motions. (Docket Nos. 28, 29; Schelly Decl. ¶ 4; Schelly Ex. 1).

*3 On March 27, 2023, Defendant took Plaintiff's deposition. (Giamela Decl. ¶¶ 8-11; Giamela Ex. F (notice of deposition); Giamela Exs. G-I (deposition transcript excerpts); Schelly Decl. ¶ 5). Plaintiff testified as to the existence of the Subject Documents – none of which had been produced by Plaintiff in his initial disclosures or subsequent sets of supplemental disclosures – consisting of: (1) a one-inch thick stack of documents relating to Plaintiff's interactions with third-party leave administrators; (2) e-mails sent from Plaintiff's Verizon.com email address to Defendant, which Plaintiff further testified, went to Defendant's spam folder; (3) emails sent from Plaintiff's Glasman.net account to Defendant, MetLife, and a third party administrator; (4) communications by and between Plaintiff and his medical care providers related to his medical leave, treatment and accommodations; and (5) documents and correspondence sent from his Glasman.net account regarding prospective and subsequent employment. (Giamela Decl. ¶¶ 9-11; Giamela Exs. G-I).

By email dated April 6, 2023, Plaintiff's counsel proposed that Plaintiff would supplement Plaintiff's objections-only responses to Defendant's Document Requests and Interrogatories with substantive responses if Defendant was amenable to Plaintiff responding after the discovery cut-off and allowing Plaintiff to take the deposition of witness Karen Mallard, after the discovery cut-off. (Giamela Decl. ¶ 12; Giamela Ex. J). By email dated April 7, 2023, Defendant's counsel rejected Plaintiff's counsel's proposal and indicated that he would be “meeting and conferring regarding Plaintiff's failure to produce documents associated with the FRCP obligations as to the initial disclosures and the document requests, now that the deposition transcript ha[d] been published and once [he] return[ed] from vacation.” (Giamela Decl. ¶ 12; Giamela Ex. J).

On April 7, 2023, Plaintiff served via email assertedly deficient supplemental responses to the Document Requests and Interrogatories. (Giamela Decl. ¶ 13; Giamela Ex. K).

As noted above, the non-expert discovery cut-off was April 7, 2023 and the last day to hear motions was April 13, 2023. (Docket No. 29; Schelly Decl. ¶ 4; Schelly Ex. 1).

By a letter dated and emailed on April 12, 2023, Defendant's counsel requested that Plaintiff supplement and produce the Subject Documents pursuant to Plaintiff's Rule 26(a)(1) and 26(e) obligations. (Giamela Decl. ¶ 14; Giamela Ex. L). Having received no response, Defendant's counsel, on or about April 19, 2023, emailed Plaintiff's counsel another letter, requesting to meet and confer in person pursuant to Local Rule 37-1. (Giamela Decl. ¶ 15; Giamela Exs. M, N).

By an email dated April 20, 2023, Plaintiff's counsel responded, asking Defendant's counsel to identify what he contended was missing and suggesting they set up a zoom meeting to discuss it. (Giamela Decl. ¶ 16; Giamela Ex. N; Schelly Decl. ¶ 6; Schelly Ex. 5). On the same date, Defendant's counsel emailed a response, indicating that it was “set forth in the prior correspondence,” and included “E-mails from Verizon.net, e-mails with doctors, e-mails from the screen shot in the disclosure, mitigation documents, medical treatment documents, correspondence with the TPA that [Defendant] did not access” that were “just some of them but [that[ it appear[ed] to be hundreds of pages.” (Giamela Decl. ¶ 16; Giamela Ex. N). Defendant's counsel did not address Plaintiff's suggestion that they have a zoom meeting. (Giamela Ex. N; Schelly Decl. ¶ 6).

As of the execution of the Giamela Declaration on May 1, 2023, Plaintiff's counsel had not substantively responded to the April 12, 2023 or April 19, 2023 letters, or provided the requested supplemental disclosures. (Giamela Decl. ¶ 17).

On May 1, 2023, Defendant filed Defendant's Motion and noticed it for hearing on May 23, 2023. (Docket No. 30). As explained in this Court's May 2, 2023 Order, such notice did not comport with the Local Rules and, to bring it into compliance with the Local Rules, this Court continued the hearing to May 30, 2023. (Docket No. 32). The Court did not then address whether – in light of the deadlines set by the District Judge – it had authority to consider the merits of Defendant's Motion.

*4 On May 16, 2023, Plaintiff made a “Supplemental Document Production,” producing documents numbered MG0080-MG0117. (Schelly Supp. Decl. ¶ 7; Schelly Supp. Ex. A; Joint Status Report at 1). Plaintiff also apparently produced additional documents on May 17, 2023. (Joint Status Report at 4). Suffice to say the parties still disagree as to whether Plaintiff has complied with his discovery obligations.

The Pretrial Conference in this action is set for July 6, 2023, and the Jury Trial is scheduled for July 18, 2023. (Docket No. 29; Schelly Ex. 1).

III. PERTINENT LAW

Pursuant to Fed. R. Civ. P. 26(a)(1)(C), a party must make the initial disclosures called for by Fed. R. Civ. P. 26(a)(1)(A) at or within fourteen days after the parties' Rule 26(f) Conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action, and states the objection in the proposed discovery plan. More specifically, a party must provide to other parties: (i) 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; (ii) a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party – who must also make available for inspection and copying as under Fed. R. Civ. P. 34, the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Fed. R. Civ. P. 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment (“initial disclosures”).

Pursuant to Rule 26(e), a party must supplement its initial disclosures in a timely manner if the party learns that in some material respect the disclosures are incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing or as ordered by the court. Fed. R. Civ. P. 26(e)(1). Pursuant to Fed. R. Civ. P. 37(c), a party who fails to provide the information called for by Rules 26(a) and 26(e) may be prohibited from using that information to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. See Fed. R. Civ. P. 37(c)(1). Alternatively or in addition thereto, the court may impose other sanctions. See Fed. R. Civ. P. 37(c)(1). It is the non-disclosing party's burden to prove that its failure to comply with Rule 26(a) was “substantially justified” or is “harmless.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).

IV. DISCUSSION AND ORDERS

First, Defendant's Motion is denied because the Magistrate Judge is without authority to hear Defendant's Motion or grant any of the requested relief. This Court cannot compel discovery to be produced after the April 7, 2023 discovery cut-off deadline set by the District Judge and cannot grant any of the relief otherwise requested by Defendant because it cannot hear Defendant's Motion – which was filed on May 1, 2023 – after the April 13, 2023 motion hearing deadline set by the District Judge.[3]

*5 Second, even if this Court had authority to address Defendant's Motion on the merits, it would be inclined to deny it without prejudice because on the current record, Defendant has failed to meet its burden to demonstrate that Plaintiff has violated Rule 26(a)(1) or Rule 26(e) by failing to produce the Subject Records.[4] Pursuant to Rule 26(a)(1)(A), a party's initial disclosures parties must include “a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A) (emphasis added). As noted above, “Plaintiff's Initial Disclosures,” served on March 8, 2022, are not in the record. As best as the Court can determine on the current record, section 2 of “Plaintiff's Initial Disclosures” identified multiple documents. (Giamela Ex. A). Defendant fails to demonstrate either that Plaintiff's identification of documents in “Plaintiff's Initial Disclosures” was insufficient to satisfy the “description by category and location” alternative method of compliance in Rule 26(a)(1)(A) so as to trigger an obligation to provide copies or that the Subject Records constitute documents that Plaintiff may use to supports its claims or defenses. If, for example, Plaintiff does not intend to use the Subject Records to support his claims or defenses, there has been no violation of Rule 26(a)(1)(A). The Court recognizes that Plaintiff himself has not made the foregoing arguments and accordingly suspects that Defendant could make the requisite showing and that its failure to do so is an oversight, but on this record, the Court could not grant Defendant's Motion irrespective of its lack of authority to do so.

Accordingly, Defendant's Motion is denied without prejudice.[5]

IT IS SO ORDERED.