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47. Is the court likely to grant the east coast manufacturer's motion for summary judgment?
During discovery, the author made all the required disclosures, revealing the name, address, and phone number of the persons likely to have discoverable information. After making these disclosures, the author learned from his dentist that an east coast dental manufacturer created the product that caused the injury, but the author did not update his disclosures. In response to the author's complaint, the east coast manufacturer moved for summary judgment, claiming that the author failed to prove that he had been exposed to the east coast manufacturer's product. The author opposed the motion for summary judgment and offered an affidavit from his dentist, affirming that the dentist had used the east coast manufacturer's products on the author.
An author filed suit in federal court against several manufacturers of a product, invoking diversity jurisdiction. The author alleged that he was exposed to the product that caused him personal injury to his mouth. When the author filed suit, he did not know which manufacturer produced the product that had caused him the injury.
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Federal Rule of Civil Procedure (FRCP) 26(a)(1) states a party must provide certain information early in the case, without awaiting a discovery request. This information includes the identities of witnesses, documents and tangible things a party plans to use, information about damages, and any insurance policies that may apply to the judgment. FRCP 26(a)(1). Parties should make initial disclosures very early in the case.
If a party makes a disclosure that is accurate when made but later discovers that the disclosure is no longer accurate, there is an important duty to supplement one's prior disclosures. Under Rule 26(a), any mandatory, automatic disclosure, including potential witnesses, must be supplemented or corrected «in a timely manner if the party 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.» Fed. R. Civ. P. 26(e)(1)(A).
FRCP 37(c)(1), which governs the failure to make proper discovery motions, including the failure to supplement earlier mandatory disclosure, states: «If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.»
FRCP 56 allows either party to file a motion for summary judgment if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law.
C is correct. The court should grant the east coast manufacturer's motion for summary judgment because the author failed to supplement earlier disclosures that were mandatory (i.e., witnesses).
Under FRCP 37(c)(1), the author may not use the undisclosed information as evidence on a motion absent a showing that «the failure was substantially justified or harmless.» The author has made no showing to justify the failure to supplement earlier discovery with the affidavit of the dentist, nor has he shown that it was a harmless non-disclosure. As such, he may not use the dentist's affidavit to oppose the manufacturer's summary judgment motion, and the court should grant it because the record contains no genuine dispute of material fact between the parties.
A is incorrect. Even though the dentist's affidavit may have shown a genuine issue of material fact as to whether the east coast manufacturer's products were used, the author may not use it in opposition to the manufacturer's motion for summary judgment. As explained above, FRCP 37(c)(1) prohibits the use of evidence on a later motion if the party failed to properly disclose or supplement earlier mandatory discovery materials. As such, the court may not use the affidavit to determine whether a genuine issue of material fact exists in the record.
B is incorrect. FRCP 56 allows for a party to move for summary judgment by pointing to materials in the record to demonstrate that no genuine dispute as to a material fact exists. Here, the east coast manufacturer properly argued that the record contained no evidence that the author had been exposed to the east coast manufacturer's product in particular. Without further evidence, this is enough for the court to grant the motion.
D is incorrect. FRCP 37(c)(1), governing the failure to make proper discovery motions, including the failure to supplement earlier mandatory disclosure, states: «If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.»
In this case, the author improperly relied on undisclosed discovery material he later raised in opposition to the motion for summary judgment, which he was obligated to provide earlier in discovery. As a result, he may not rely on this undisclosed material now in opposition to summary judgment, as explained above.