United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, Chief District Judge.
This matter comes before the Court on plaintiff Cedric Goodloe's Motion for New Trial and Sanctions (doc. 168), and defendant's Motion to Re-Tax Costs (doc. 169). The relevant briefing schedule has expired, and both Motions are now ripe.
Plaintiff Cedric Goodloe brought a claim of retaliation in violation of 42 U.S.C. § 1981 against his former employer, Daphne Utilities. The case proceeded to jury trial on May 26 and 27, 2015. Following deliberations, the jury returned Special Interrogatories reflecting their unanimous findings that Goodloe had engaged in protected activity, but that such protected activity was not a motivating factor that prompted Daphne Utilities to terminate his employment. Because the latter determination negated Goodloe's ability to recover on a retaliation theory, the Court entered Final Judgment (doc. 163) in favor of Daphne Utilities and against Goodloe on May 29, 2015.
During the trial, defense counsel cross-examined Goodloe about the circumstances of his separation from another employer, Hargrove Engineering, and his return to full-time employment at Daphne Utilities in early 2011. Goodloe repeatedly testified that he had resigned from Hargrove because Daphne Utilities was offering him higher pay. (Doc. 171, Exh. A, at 21.) The jury also viewed a clip of Goodloe's video deposition in which he denied having ever filed an EEOC Charge of Discrimination other than the one he lodged against Daphne Utilities. ( Id. at 23.) During that same cross-examination, defense counsel introduced into evidence Defendant's Exhibit 34, an EEOC Charge against Hargrove signed by Goodloe on February 10, 2011, and alleging that Hargrove had terminated Goodloe's employment because of his race. (Doc. 171, Exh. C.) Goodloe attempted to explain away these discrepancies by testifying that he did not recall whether he had resigned or whether Hargrove had fired him, and that he did not recall having filed the Hargrove EEOC Charge. Given the weakness of these explanations and the glaring inconsistencies between Exhibit 34 and his testimony, Goodloe's credibility was substantially impeached by this cross-examination. At no time before or during trial did plaintiff's counsel object to the introduction of Defendant's Exhibit 34 into evidence or to Daphne Utilities' use of that document in the Goodloe cross-examination.
It is undisputed that Daphne Utilities obtained the Hargrove EEOC Charge in the following manner: Defendant's counsel contacted Hargrove and apparently learned of the existence of the Hargrove EEOC Charge in spring 2014, but did not obtain a copy of the document or otherwise follow up at that time. (Doc. 168, Exh. C, ¶ 4; doc. 171, at 2.) Pursuant to the operative Rule 16(b) Scheduling Order, discovery closed on November 14, 2014. (Doc. 15, ¶ 2.) On April 13, 2015, five months after the close of discovery and less than six weeks before trial, without leave of court Daphne Utilities issued a "Subpoena in a Civil Case" to Hargrove, commanding it to produce "[d]ocuments pertaining to EEOC Charge Number XXX-XXXX-XXXXX" at defense counsel's offices on April 17, 2015. (Doc. 168, Exh. A.) The Subpoena further commanded Hargrove that "[i]f certified copy of documents requested not received, appear at" Courtroom 2A of the U.S. Courthouse in Mobile, Alabama on May 5, 2015, the date of jury selection. ( Id. ) For its part, Hargrove responded to the Subpoena on the same day it was issued by providing Daphne Utilities with a certified copy of Goodloe's EEOC Charge against Hargrove dated February 10, 2011, as well as approximately 50 pages of additional materials. (Doc. 168, Exh. B.)
At no time did Daphne Utilities furnish Goodloe with either notice or a copy of the Subpoena. However, in the Joint Pretrial Document filed on April 8, 2015, Daphne Utilities included a two-page Exhibit List numbering 43 items. Exhibit 34 on Defendant's Exhibit List read "Goodloe's EEOC Charge of Discrimination - Hargrove." (Doc. 127, at 35.) Although Paragraph 4(J)(1) of the undersigned's Standing Order Governing Pretrial Conferences requires that "[o]bjections to exhibits shall be noted in the Joint Pretrial Document, setting forth the nature of the objection" (doc. 15, ¶ 8 & doc. 15-1 at 4), Goodloe did not articulate objections to Defendant's Exhibit 34 (or any other defense exhibit) in the Joint Pretrial Document. Nor did Goodloe file any motion in limine seeking to exclude Defendant's Exhibit 34. Instead, Goodloe remained silent about Exhibit 34 both before and during the trial, never expressing any concerns about the manner of its production or the sufficiency of notice until several weeks after the jury returned a defense verdict.
A. The Hargrove EEOC Charge was Properly Disclosed, but Improperly Obtained.
Some 28 days after entry of Final Judgment, Goodloe filed a Motion for New Trial and Sanctions, in which he accused defense counsel of "blatant and intentional misconduct" with regard to the procurement and utilization of Defendant's Exhibit 34. (Doc. 168, at 1.) In particular, Goodloe ascribes at least three distinct forms of misconduct to defense counsel's actions, to-wit: (i) service of a discovery subpoena on Hargrove five months after the close of discovery; (ii) failure to provide mandatory notice to plaintiff's counsel of the Hargrove subpoena; and (iii) failure to disclose the Hargrove EEOC Charge to plaintiff's counsel before trial.
As a threshold matter, Goodloe's allegations of nondisclosure are counterfactual. In his Motion, plaintiff protests that Daphne Utilities was "hiding its hand and preparing for trial by ambush" (doc. 168, at 5), that "Defendant's failure to list the subpoenaed documents in its pre-trial disclosures... is inexcusable" ( id. at 8), and that "Defendant's failure to seek leave to amend its disclosures to list the subpoenaed documents... clearly reflects a conscious plan to spring' the subpoenaed materials at trial, just as it did" ( id. ). Such rhetoric is in direct conflict with the facts. The Joint Pretrial Document filed nearly seven weeks before trial includes Daphne Utilities' enumeration of "Goodloe's EEOC Charge of Discrimination - Hargrove" as Defendant's Exhibit 34. (Doc. 127, at 35.) This was not "trial by ambush." This was not defendant "springing" a secret exhibit on Goodloe at trial. To the contrary, Daphne Utilities clearly and unequivocally disclosed both the existence of the Hargrove EEOC Charge and its intent to use it as a trial exhibit in the Joint Pretrial Document. There was no failure to disclose, and Goodloe is entitled to neither a new trial nor sanctions on that basis.
That said, Goodloe's argument that the April 13 subpoena violates the Scheduling Order is meritorious. The discovery period closed five months before Daphne Utilities issued a subpoena for Hargrove to produce the EEOC Charge and related records, yet Daphne Utilities never requested leave of court to engage in such untimely discovery activities. It is no answer to argue, as Daphne Utilities does, that this was a trial subpoena issued under Rule 45(a)(1)(C), rendering it somehow exempt from the discovery deadline. Considerable authorities are to the contrary. "Rule 45 subpoenas have been generally held to constitute discovery, and therefore, are subject to the same time constraints that apply to all other formal discovery." Abrams v. Ciba Specialty Chemicals Corp., 265 F.R.D. 585, 588 (S.D. Ala. 2010) (citations omitted).
To be sure, such subpoenas may be properly issued for "trial preparation." See, e.g., Circle Group, L.L.C. v. Southeastern Carpenters Regional Council, 836 F.Supp.2d 1327, 1352 (N.D.Ga. 2011) ("Rule 45 subpoenas may be employed in advance of trial and outside of a discovery deadline for the limited purposes of memory refreshment, trial preparation, or to secure for the use at trial original documents previously disclosed by discovery."). However, a defendant's "assertion that the records are needed in order to prepare for trial is not persuasive where the need for the records should have been anticipated during the discovery period. To find otherwise would encourage litigants to routinely disregard discovery deadlines, and instead seek documents, via subpoena, outside of the discovery period by merely asserting that the documents are necessary for trial preparation." Abrams, 265 F.R.D. at 589; see also Circle Group, 836 F.Supp.2d at 1352 ("Practical considerations of case management compel the conclusion that Rule 45 subpoenas issued after the close of discovery and seeking to re-open discovery under the guise of trial preparation should be quashed.").
Applying these principles here, Daphne Utilities admits that it knew of the existence of Goodloe's EEOC Charge against Hargrove back in the spring of 2014, during the discovery period in this case. Defendant identifies no reason why it could not have subpoenaed the requested records from Hargrove during the discovery period. Under the circumstances, Daphne Utilities' issuance of Rule 45 subpoena to Hargrove five months after the close of discovery to obtain documents that it could have obtained earlier with diligence constitutes improper use of a Rule 45 subpoena to re-open discovery. To hold otherwise would be to encourage litigants to ...