Case Summary
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Whiteway v. Fedex Kinkos Office & Print Services, 2010 U.S. Dist. LEXIS 56124 (N.D. Cal. May 17, 2010).
Plaintiff was barred from using three email exhibits except for impeachment because the emails to and from defendant’s employees were disclosed to defendant after the close of discovery. Although the email was disclosed to defendant within two days after it was found in another lawsuit against defendant, plaintiff failed to show the court why plaintiff could not have found the email sooner.
Plaintiff filed an action on his own behalf and behalf of other Center Managers for defendant and alleged the position of Center Manger had been misclassified and not paid overtime wages. Following reversal of summary judgment for defendant, the trial court decertified the plaintiff class and set a trial date for plaintiff's claim. Defendant objected to plaintiff's presentation at trial of three emails to and from defendant's employees on the ground that plaintiff's supplemental disclosure that included the email was not made until after the close of discovery. Plaintiff countered that his counsel disclosed the email to defendant on the day after his counsel obtained the email from a former employee of defendant while investigating a separate wage and hour case against defendant in a state court.
The court first noted that plaintiff had failed to support his factual assertions in opposition to defendant's objections with an affidavit or declaration as required by local rule. The court then pointed out that plaintiff "fails to demonstrate why he could not have discovered these emails sooner" during the five years since the email was generated. The court also was not "persuaded by Plaintiff's unsupported contention that [defendant] possessed these emails and should have produced them in discovery." "Tellingly," according to the court, "Plaintiff fails to establish that any of these emails would have been responsive to any particular discovery request he propounded during the course of the action." The court concluded that defendant was prejudiced by the late disclosure of the email because trial now was only a month away and defendant "has not had an opportunity to propound discovery to interview or depose the Center managers who appear to have been on the distribution list of these emails."
Plaintiff filed an action on his own behalf and behalf of other Center Managers for defendant and alleged the position of Center Manger had been misclassified and not paid overtime wages. Following reversal of summary judgment for defendant, the trial court decertified the plaintiff class and set a trial date for plaintiff's claim. Defendant objected to plaintiff's presentation at trial of three emails to and from defendant's employees on the ground that plaintiff's supplemental disclosure that included the email was not made until after the close of discovery. Plaintiff countered that his counsel disclosed the email to defendant on the day after his counsel obtained the email from a former employee of defendant while investigating a separate wage and hour case against defendant in a state court.
The court first noted that plaintiff had failed to support his factual assertions in opposition to defendant's objections with an affidavit or declaration as required by local rule. The court then pointed out that plaintiff "fails to demonstrate why he could not have discovered these emails sooner" during the five years since the email was generated. The court also was not "persuaded by Plaintiff's unsupported contention that [defendant] possessed these emails and should have produced them in discovery." "Tellingly," according to the court, "Plaintiff fails to establish that any of these emails would have been responsive to any particular discovery request he propounded during the course of the action." The court concluded that defendant was prejudiced by the late disclosure of the email because trial now was only a month away and defendant "has not had an opportunity to propound discovery to interview or depose the Center managers who appear to have been on the distribution list of these emails."
