IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAXIE MCNABB, )

)

Plaintiff ) CIVIL ACTION NO: 

) 2:06-0664-MHT

v. )

)

SANDERS LEAD COMPANY, INC. )

)

Defendant. )

PLAINTIFF’S RESPONSE TO DEFENDANT’S OBJECTIONS

TO PLAINTIFF’S WITNESS AND EXHIBIT LIST

Comes Now, the Plaintiff, by and through his undersigned counsel of record

and responds to the Defendant’s Objections to Plaintiff’s Witness and Exhibit list. 

The Plaintiff would show unto the Court as follows:

1. On December 4, 2006, this Court entered a Uniform Scheduling Order setting

forth deadlines the parties were to abide by in the instant case. One such deadline

was that all discovery in this matter was due by June 29, 2007. Another deadline was

that the Parties were to exchange witness and exhibit lists forty days before trial with

any objections due fifteen days before trial.

2. On October 17, 2007, pursuant to the Federal Rules of Civil Procedure and the

Uniform Scheduling Order entered by this Court, the parties exchanged witness and

exhibit lists.

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3. On November 9, 2007, the Defendant filed objections to the Plaintiff’s Witness

and Exhibit List. The Defendant objects to the Plaintiff being able to use the

following witnesses at the trial of this matter: Nicholas O’Brian Williams, Randolph

E. Harley, III, Robert Brundidge, Jr., Bobby Taylor Streeter, Timothy Rayborn,

Anthony L. Duncan, Edward Meadows, and Joe Owens. 

4. The basis of the Defendant’s objection with regard to each of these witnesses,

with the exception of Joe Owens, is that because they were not disclosed before the

close of discovery the Plaintiff should be barred from using them at trial. The

Defendant’s contention in this regard is misleading and inaccurate.

5. First, with regard to Joe Owens, the Plaintiff served the Defendant with his

Initial Disclosures on January 16, 200 and within those disclosures the Plaintiff listed

Joe Owens as a witness who may have knowledge of the allegations raised in his

Complaint. The Plaintiff did not have an address or phone number for Mr. Owens

and stated as much. 

6. In the Plaintiff’s deposition, which the Defendant took one day before the close

of discovery, the Plaintiff informed the Defendant how and where it could get in

touch with Mr. Owens, if need be. (Ex. 1, See, Pl’s. Dep. pp. 62-64). After the

Plaintiff’s deposition, the Defendant chose not to attempt to contact Mr. Owens and

never sought an extension of time in which to take his deposition, which it could have

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done. Moreover, the Defendant has not shown that the Plaintiff actively sought to

conceal Owens’s identity or acted in bad faith in any way. Anderson v. Cagle’s, 2005

WL 3873160 (M.D. Ga.). Furthermore, any prejudice to the Defendant by not taking

Owens’s deposition is its own fault because as it could have requested more time if

it really felt that Owens’s testimony was crucial to any defenses it may assert at trial.

See, LaMothe v. Bal Harbour 101 Condominium Ass’n, Inc., 2007 WL 781909 (S.D.

Fla.). 

7. With regard to the other witnesses objected to, the Plaintiff learned of the

names and addresses of these individuals from the Defendant itself. On January 17,

2007, the Plaintiff served the Defendant with Plaintiff’s First Interrogatories and

Request for Production of Documents. The Defendant responded to the Plaintiff’s

discovery request on February 16, 2007 and supplied a list of its employees

delineated by name, department, date of birth and date of hire. Because the

Defendant’s discovery responses were deficient, the Plaintiff, after unsuccessfully

attempting to get satisfactory responses without the Court’s intervention, filed a

Motion to Compel the production of documents reflective of the work histories of the

employees listed by the Defendant in its earlier production. 

8. While the Motion to Compel was pending, the Plaintiff used the information

he had received to respond to Defendant’s Motion for Summary Judgment. Plaintiff

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If the Court were to sustain the Defendant’s objections regarding these witnesses, which

it should not, the Plaintiff will request at trial to use these witnesses for purposes of rebuttal and

impeachment as allowed by the Federal Rules of Civil Procedure and the Uniform Scheduling

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also filed a Motion to Leave the Record Open pending the Court’s decision regarding

his Motion to Compel. (See Doc. No. 25, 26, 27). The Court granted the Plaintiff’s

Motion to Compel and Ordered the Defendant to produce records relating to

discipline, attendance, and tardiness received by individuals hired, transferred or

promoted to vacant positions within the division where the Plaintiff worked, which

it did. (See Doc. No. 24). 

9. Based on these discovery responses, the Plaintiff was able to show in his

response at summary judgment that the Defendant had rehired employees with worse

employment records than himself. The Defendant knew that these persons could be

potential witnesses in this matter at least by July 2, 2007 because their names were

mentioned in the Plaintiff’s response to summary judgment. It had the identity,

names, and addresses of these persons and has complete and unfettered access to

them because they are its own current or former employees. For the Defendant to

now cry “foul” to the Court because it has failed to talk to these persons or sought to

take their deposition is disingenuous as it has known about them for approximately

four months and has always had their contact information. Therefore, the

Defendant’s objections to the Plaintiff’s witness designations should be overruled.1

Case 2:06-cv-00664-MHT-SRW Document 49 Filed 11/13/2007 Page 4 of 7
Order of this Court. LaMothe v. Bal Harbour 101 Condominium Ass’n, Inc., 2007 Wl 78199

(S.D. Fla.). 

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11. The Defendant also objects to each and every one of the Plaintiff’s exhibits on

the basis that the Plaintiff has failed to provide copies of these documents to the

Defendant and that such has severely prejudiced the Defendant in that they have not

been afforded an opportunity to inspect and review said documents. 

12. The Plaintiff emailed his exhibits to the Defendant, by and through his 

undersigned counsel of record on October 17, 2007. (See Ex. 2, Emails Encl.

Exhibits and Witness and Exhibit List). The Defendant’s counsel’s email server

rejected these emails. (See Ex. 3, Emails Rejecting Pl.’s Exhibits). Plaintiff stated

this fact in a separate email on that same day and informedthe Defendant that his

witness and exhibit list would follow by mail and that they were the Plaintiff’s

“summary judgment exhibits.” (See Ex. 4, Email Detailing Problem). 

13. While the Plaintiff did inadvertently neglect to physically mail a copy of these

exhibits to the Defendant, the Defendant already had a copy of these exhibits in its

possession because the Plaintiff filed these exhibits with the Court and the Defendant

as part of his response to Defendant’s Motion for Summary Judgment on July 2,

2007. They are the same documents with no additions. 

Case 2:06-cv-00664-MHT-SRW Document 49 Filed 11/13/2007 Page 5 of 7
2Defendant specific objections to Plaintiff’s Exhibits 1, 2, and 25 are equally without

merit. Plaintiff’s Exhibit 1, his declaration, is proper under 28 U.S.C. § 1746. Plaintiff’s

Exhibit 2 is relevant to any computation or calculation of compensatory and/or punitive damages. 

Plaintiff’s Exhibit 25 is a sworn statement attested to by a Notary Public and it authenticity can

be tested at trial. 

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14. This inadvertent error was harmless and no irreparable harm has inured to the

Defendant. AllState Insurance Co., v. Jackson, 2007 WL 3287369 (S.D.Ala.); Kelley

Foods of Alabama, Inc.v. Myers Nissi & Company, Inc., 2006 WL 2290835.

Therefore, any objection to these documents being used at trial for this reason or any

other reason is wholly without merit and frivolous.2 

Based on the foregoing, the Defendant’s Objections to Plaintiff’s Witness and

Exhibit List are due to be overruled.

Respectfully submitted,

/s/Roderick T. Cooks

Attorney for the Plaintiff

OF COUNSEL:

WINSTON COOKS, LLC

The Penick Building

319-17th Street North

Birmingham, AL 35203

Tel: (205)502-0970

Fax: (205)251-0231

email: rcooks@winstoncooks.com

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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document on all

persons listed below by CMF/Electronic Mail and/or U. S. Mail, postage prepaid and

addressed to them as follows:

Matthew M. Baker, Esq.

Cervera, Ralph & Reeves, LLC

P.O. Box 325

914 South Brundidge Street

Troy, Alabama 36081

(334) 566-0116

Done this the 13th day of November, 2007.

/s/Roderick T. Cooks

Of Counsel 

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