United States District Court, D. South Dakota, Southern Division
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE IN
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Daryl Scheetz, moves to strike the affidavit of defendant
Hunter Summers dated September 13, 2017, including all
attached exhibits and for other appropriate Rule 37
sanctions. Docket 113. Defendants, Crystal Van Vooren and
Hunter Summers, oppose the motion. Docket 122.
amended complaint alleges that defendants retaliated against
him for exercising his First Amendment rights by restricting
plaintiff's visitation to Class II visitation. Docket 66.
Defendants maintain that plaintiff's visitation was
restricted because he was under investigation for smuggling
contraband into the prison with another prisoner, Nathaniel
Hayes. On February 27, 2017, defendants responded to
plaintiff's interrogatories and requests for production.
Plaintiff's interrogatories asked defendants to identify
correspondence, information, reports and documents relied
upon in placing Scheetz on Class II visitation status. Docket
115-12 at 7-8. In response, Summers identified Leeland
Tjeerdsma's affidavit (Docket 41-16) and his own
September 25, 2015, affidavit (Docket 75-1). Docket 115-12 at
7-8. Summers was further asked to identify the basis for
statements made in his September 2015 affidavit and
specifically to identify any exhibits he intended to
introduce at trial. Docket 115-12 at 7. In response, he
identified an Administrative Detention Order (Docket 41-1),
Scheetz's Judgment of Conviction (Docket 41-15), the
South Dakota Board of Pardons and Paroles Violation Report
(Docket 75-7), and Scheetz's Request for Administrative
Remedy (Docket 75-16). Docket 115-12 at 7.
addition, plaintiff served sixteen requests for production on
Summers. In response to the requests for production, Summers
produced three documents entitled Attachments A, B, and C.
Attachment A is an email thread from April 18, 2013, between
Summers and Van Vooren. Docket 115-12 at 12. Attachment B is
a disciplinary report documenting charges made against
Nathaniel Hayes. Id. at 13. And Attachment C is a
Confidential Informant Report drafted by Summers regarding
information on Hayes. Id. at 14. On June 30, 2017,
this court granted Scheetz leave to extend discovery and take
six depositions. Docket 107. The depositions of defendants
Van Vooren and Summers were set for July 19, 2017. On July
13, 2017, Scheetz sent a letter to defendants requesting that
defendants produce an email to which Warden Dooley referred
to in paragraphs 8 and 9 of his September 17, 2015 affidavit.
115-3 at 2. Scheetz also asked that the defendants review the
docket and produce “all documents that should be
produced pursuant to Rule 26.” Id. Defendants
responded to the letter stating that the email referred to by
Dooley could not be located, and defendants did not produce
any additional documents. Docket 115-4 at 3-4.
Summers' deposition, he was questioned about his efforts
to locate emails related to Scheetz. See Docket
115-1 at 14. Scheetz's counsel asked, “Are there
other emails between you and Miss Van Vooren about the Hayes
investigation that you haven't produced in this
case?” Id. Summers responded,
“No.” Id. Scheetz's counsel also
questioned Van Vooren as to whether there was any other
responsive email correspondence and she denied that there
was. See Docket 115-2 at 3-4, 6-7.
25, 2017, during Leland Tjeerdsma's deposition,
defendants provided Scheetz with an email from Tjeerdsma to
Summers regarding the 2012 investigation of Scheetz smuggling
contraband with a correctional officer. Docket 115-10 at 4.
Van Vooren was also included on the email, but neither
defendant had produced the email until after their
depositions. On August 17, 2017, defendants produced eight
pages of emails from Tjeerdsma that had been sent to DOC counsel
Ashley McDonald on August 26, 2014. Docket 115-10. Also on
August 17, 2017, defendants produced, for the first time, 78
pages of documents including: a May 7, 2013 email; a May 10,
2013 email; a November 5, 2013 email; a November 6, 2013
email; an Administrative Detention Order dated November 1,
2016, and a November 1, 2016 email from Lee
Kaufenberg. Summers now offers those documents in his
September 13, 2017 affidavit. Docket 111. Because defendants
disclosed the documents after the defendants' July 19,
2017 depositions, Scheetz's counsel was unable to depose
the defendants about the contents of the documents.
26, 2017, Scheetz served a subpoena for a Rule 30(b)(6)
deposition and subpoena duces tecum to the South Dakota
Department of Corrections (DOC) and set the date for the
deposition and production on August 17, 2017. Docket 115-5.
The notice of deposition identified ten subject areas the
deponent should be prepared to address. Id. at 6.
The notice also identified sixteen categories of documents
that the DOC should produce. Id. at 8. Scheetz
alleges that the DOC did not produce a witness who was
knowledgeable about three of the topics and instead
produced an affidavit from an attorney with the South Dakota
Attorney General Office that outlined the search terms used
to search the email database. See Docket 115-14. The
attorney's affidavit described the process by which the
DOC searched its emails. Id. He conducted the
initial inquiry of the mailboxes of Warden Robert Dooley, Van
Vooren, and Steve Baker on July 25, 2017, using the terms
“Scheetz AND Visitation.” Id. at 4. He
performed the second search of the mailboxes of Van Vooren,
Art Allcock, Summers, Bob Dooley, Denny Kaemingk, Clifton
Fantroy, Steve Baker, Troy Ponto, and Darin Young on August
11 and 14 of 2017. Id. at 5. The second search used
the terms “Scheetz AND visit, ” “Scheetz
AND Visitation, ” and “Scheetz AND parole.”
Id. The affidavit states that, in total, the
searches produced 548 results. Id.
now moves this court for the following: (1) to dismiss the
defendants' renewed motion for summary judgment (Docket
109) because it is based on evidence that was not timely
disclosed; (2) to award Scheetz reasonable attorney's
fees for time spent on addressing the lack of production with
defendants' counsel, preparing for the Rule 30(b)(6)
witness deposition, drafting and preparing this motion to
strike (Docket 113), and drafting and preparing a response to
the defendants' renewed motion for summary judgment; (3)
to inform the jury of defendants' failure to timely
produce responsive documents through an adverse jury
instruction; and (4) to preclude defendants from offering,
referring to, testifying, or otherwise relying on all
untimely-disclosed documents for any purpose other than
The untimely disclosure of the Tjeerdsma emails and the
Summers Affidavit documents
Rule of Civil Procedure 26(a)(1)(A)(ii) requires parties to
make initial disclosures including “a copy-or a
description-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)(ii).
If a party fails to satisfy an initial or supplemental
disclosure, the court has discretion to apply appropriate
sanctions-unless the nondisclosure “was substantially
justified or is harmless.” Fed.R.Civ.P. 37(c)(1). An
untimely disclosure is considered a nondisclosure. Trost
v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir.
1998). The Eighth Circuit applies a four-part balancing test
to determine whether a failure to disclose is substantially
justified or harmless and to fashion an appropriate remedy.
Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir.
2008). The balancing test considers “the reason for
noncompliance, the surprise and prejudice to the opposing
party, the extent to which allowing the information or
testimony would disrupt the order and efficiency of the
trial, and the importance of the information or
Whether defendants' untimely disclosure of the Tjeerdsma
emails and the Summers Affidavit ...