United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
action, Plaintiff, proceeding pro se, alleges that
his former employer, Johnsonville Sausage LLC
(“Johnsonville”), discriminated against him
because of his race and retaliated against him for engaging
in protected activity. (Docket #1). On April 11, 2017,
Johnsonville filed a motion to compel Plaintiff to supplement
his responses to certain of their discovery requests. (Docket
#20). Plaintiff did not respond to the motion, so the Court
treats it as unopposed.
motion, Johnsonville seeks supplemental responses as to two
of its discovery requests. (Docket #20 at 2). First,
Plaintiff has referenced in one of his discovery responses
that he possesses an audio recording he surreptitiously made
of a meeting between himself and his supervisors.
Id. at 2-3. Despite Johnsonville's request that
he produce the recording, he has refused without providing
any reason for withholding it. Id. at 3. Second,
Plaintiff ignored Johnsonville's request to produce
documents relevant to any income he has received since his
separation from the company. Id. During the
parties' meet-and-confer efforts, Plaintiff asserted that
although he did not have responsive materials for this
request on the date it was served, he now has relevant
information. Id. Nevertheless, he refuses to produce
it. Id. In light of Plaintiff's behavior,
Johnsonville seeks an order compelling him to produce these
items and seeking an award of its reasonable attorney's
fees and costs as a sanction. Id. at 3-4.
the first request, it is indisputable that Plaintiff must
turn over the audio recording and the documents establishing
his post- termination income. Both are relevant to the
subject matter of this action, and Plaintiff has interposed
no valid objection to their production. See Fed. R.
Civ. P. 26(b)(1) (“Parties may obtain discovery
regarding any non- privileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case[.]”). Indeed, Plaintiff has not even responded
to Johnsonville's motion in order to suggest some reason
why the discovery sought is improper. See Civ. L. R.
7(d) (“Failure to file a memorandum in opposition to a
motion is sufficient cause for the Court to grant the
motion.”). Additionally, to the extent Plaintiff
believes that he need not produce responsive documents as
they become available, he is mistaken; Federal Rule of Civil
Procedure 26(e) imposes on him a continuing duty to
supplement his discovery responses “in a timely manner
if [he] learns that in some material respect the disclosure
or response is 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.” Id. 26(e)(1)(A); Remien v. EMC
Corp., No. 04 C 3727, 2008 WL 821887, at *4 (N.D. Ill.
Mar. 26, 2008) (“[T]he fact that the requested
documents were not in existence at the time of the original
production is not an automatic ban to their production
now.”) (citing Melendez v. Ill. Bell Tel. Co.,
79 F.3d 661, 671 (7th Cir. 1996)). As a result, the Court
must order Plaintiff to comply with these discovery requests.
Plaintiff has five (5) days from the date of this Order to
produce these items, and no request for an extension of time
will be entertained.
matter of sanctions, the Court declines to impose monetary
sanctions at this time. First, Johnsonville has submitted no
evidence of the attorney's fees and costs it incurred,
preventing the Court from considering what a reasonable award
should be. Second, while Plaintiff's conduct was
unjustified and worthy of sanction, the Court is cognizant
that Plaintiff, as a pro se litigant, has limited
resources, making a monetary sanction especially harsh.
See Fed. R. Civ. P. 37(a)(5)(A)(iii) (a court can
decline to award fees if circumstances make such an award
the Court gives Plaintiff this warning: in light of the clear
discovery violations raised in this motion and in connection
with Plaintiff's deposition, see (Docket #23),
further discovery misconduct will not be tolerated. If
additional violations of the discovery rules are brought to
light, or if Plaintiff fails to comply with this Order, the
Court will dismiss this case as a sanction for his
misconduct. See Fed. R. Civ. P. 37(b)(2);
Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir.
2003) (observing that a district court may impose a sanction
of dismissal if a party acts in bad faith and lesser
sanctions are not appropriate); Downs v. Westphal,
78 F.3d 1252, 1257 (7th Cir. 1996) (“[B]eing a pro se
litigant does not give a party unbridled license to disregard
clearly communicated court orders. It does not give the pro
se litigant the discretion to choose which of the court's
rules and orders it will follow, and which it will wilfully
IT IS ORDERED that Defendant's motion to compel and for
sanctions (Docket #20) be and the same is hereby GRANTED in
part and DENIED in part as stated herein; and
FURTHER ORDERED that Plaintiff will produce to Defendant, no
later than five (5) days from the date of this Order, the
audio recording and documents pertaining to his
post-termination income as identified above. Failure to
comply with ...