1

 Defendants’ response also contains a request for oral argument. After careful review of

the parties' detailed written submissions the undersigned concludes that oral argument would not

materially assist the Court in understanding and resolving the issues presented. Accordingly, the

request for oral argument on the motion is denied. See Local Rule 7.3 ("the court may in its

discretion rule on any motion without oral argument").

2

 In their Rule 26(f) Report the parties agreed to exchange initial disclosures by

September 14, 2009. (Doc. 34 at 3) However, the docket sheet reflects that defendants served

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SHELTON M. FRYE, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 08-00340-WS-N

)

ESCAMBIA COUNTY BOARD OF )

EDUCATION, et al., )

)

Defendants. )

ORDER

This action is before the undersigned on plaintiff’s motion (doc. 53) to strike

defendants’ supplemental disclosures, defendants’ response in opposition thereto (doc.

55), and plaintiff’s reply (doc. 56). After careful consideration of these arguments and all

other pertinent portions of the record, the undersigned concludes that the motion is due to

be DENIED.

1

Procedural Background

A Rule 16(b) Scheduling Order was entered in this action on September 15, 2009

(doc. 35) setting a discovery deadline of March 12, 2010. The Scheduling Order further 

directed the parties to exchange initial disclosures on or before September 14, 2009. Id.2

 

Case 1:08-cv-00340-WS-N Document 67 Filed 05/07/10 Page 1 of 7
initial disclosures on plaintiff on March 4, 2010. (Doc. 41) 

3

 The docket sheet reflects that plaintiff filed a notice of filing supplemental disclosures

on April 12, 2010. (Doc. 52)

2

On March 8, 2010 plaintiff filed an unopposed motion for an extension of time to

complete discovery. (Doc. 42) The motion was granted and the discovery deadline was

reset to April 12, 2010. (Doc. 43) On April 8, 2010 defendants filed notice of service of

supplemental disclosures and supplemental response to request for production. (Doc. 50)3

On April 13, 2010 plaintiff filed the instant motion to strike defendants’ supplemental

disclosures on the grounds, in sum, that “Defendants’ close of discovery submission of

ten additional witnesses, who are all well known to the defendants, is prejudicial to the

Plaintiff and hampers his ability to properly prepare his case.” (Doc. 53) 

Federal Rules of Civil Procedure 26 & 37

Rule 26(a) of the Federal Rules of Civil Procedure requires parties to exchange 

initial disclosures containing the identity of each individual likely to have discoverable

information along with the subjects of that information. Fed. R Civ. P. 26(a)(1). In

addition, Rule 26(e) requires the parties to supplement their 26(a) disclosures “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) (emphasis added). 

Rule 37 of the Federal Rules of Civil Procedure addresses the possible sanctions

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3

available if a party fails to comply with Rule 26: “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.” Fed. R. Civ. P. 37(c)(1) (emphasis

added). “The burden of establishing that a failure to disclose was substantially justified

or harmless rests on the nondisclosing party .” Mitchell v. Ford Motor Co., 318 Fed.

Appx. 821, 825 (11th Cir.2009) (quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.

D. Ga. 2006)). 

The Advisory Committee Notes to Rule 26(e) provide that there is “no obligation

to provide supplemental or corrective information that has been otherwise made known to

the parties in writing or during the discovery process, as when a witness not previously

disclosed is identified during the taking of a deposition....” See also 8 Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 2049.1 (“[T]here is no need

as a matter of form to submit a supplemental disclosure to include information already

revealed by a witness in a deposition or otherwise through formal discovery.”); Watts v.

Hospitality Ventures, LLC, 2008 WL 220798, *2 (M.D.Ala., January 25, 2008) (“ Rule

26(e) does not require a supplemental disclosure of a witness name if the witness was

identified in discovery, such as during a deposition.”).

Discussion

It is undisputed that the supplemental disclosures at issue were served by the

defendants’ counsel on plaintiff’s counsel on Thursday April 8, 2010 prior to the close of

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Rule 26 of the Federal Rules of Civil Procedure provides that “[a] party must make its

initial disclosures based on information then reasonable available to it [and] is not excused from

making its disclosures because it has not fully completed its investigation of the case...”

Fed.R.Civ.P. 26(a)(1)(E). 

4

discovery on Monday, April 12, 2010. The issue is whether the failure to disclose these

witnesses initially was due to counsel’s oversight, because defendants’ investigation was

incomplete4

 or because the ten additional witnesses were unknown to either side. 

In the motion, plaintiff’s counsel, without specifically naming any of the witnesses

he seeks to have stricken, acknowledges that “seven (7) of the ten [witnessess identified

in the supplemental disclosures] are actually duly elected members of the Escambia

County Board of Education” and describes the remaining three as “employees of the

defendant Board of Education.” In the Amended Complaint (doc. 24), plaintiff refers to

“his claims [as being] against the Defendant Escambia County Board of Education, and

its members.” Complaint (doc. 24) at 1. 

 Defendants argue that they had no duty under the Rules to supplement their

disclosures with names of individuals they maintain were known to plaintiff, but did so in

an abundance of caution. (Doc. 55) In support of their opposition, defendants have

submitted a copy of their supplemental disclosures, plaintiff’s supplemental disclosures

and a portion of plaintiff’s deposition testimony. (Doc. 55, Exhibits 1, 5) 

The ten witnesses identified in defendants’ supplemental disclosures are: Cereal

Daniel, William J. Grissett, Charles Brooks, Michael Goolsby, Richard Hawthorne, Jack

Crutchfield, Danny Benjamin, Zickeyous Byrd, Carl Raley and Harvey Means. (Id.,

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5

 Defendants also argue that David Lanier was known to plaintiff. (Doc. 55 at 3) 

However, Mr. Lanier is not one of the ten named witnesses on the defendants’ supplemental

disclosure list that is the basis of the instant motion. 

6

 The initial complaint in this action was filed on June 13, 2008 (doc. 1) with plaintiff

proceeding pro se.

5

Exhibit 1) 5 It is undisputed that the first seven are members of the Escambia Board of

Education, defendant in this lawsuit. Of those seven, Daniel, Grissett and Brooks were

specifically referenced in plaintiff’s initial complaint and were known to plaintiff.6

 

Plaintiff also had knowledge of the three remaining witnesses listed in the

disclosure. Harvey Means, principal of Escambia County High School interviewed

plaintiff for the assistant principal position and is included as a witness in plaintiff’s

supplemental disclosures. Defendants’ Opposition (doc. 55) at Exh. 3. In addition,

plaintiff deposed Mr. Means, who was put up as one of the Board’s 30(b)(6) witnesses. 

Carl Raley was Principal of Escambia County High School from 2007-2008 and

conducted an interview of the plaintiff for one of the positions Frye contends he was

denied for improper discriminatory and/or retaliatory reasons. See Doc. 58-16 (Raley

Affidavit); Defendants’ Opposition (doc. 55) at Exh. 2. In addition, Raley was referenced

in plaintiff’s initial complaint and plaintiff testified in his deposition to his interaction

with Raley. Mr. Raley was clearly a person known to plaintiff from the outset to have

discoverable information relevant to the disputed facts in this case. 

The remaining witness, Zickeyous Byrd, is principal of Escambia County Middle

School and is identified as having “information about the plaintiff’s work history at the

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Plaintiff, in paragraph 7 of the motion itself (doc. 53), sets out Rule 26(g)(1), including

the provision that “[T]he signature of the attorney or party constitutes a certification that to the

best of the signer’s knowledge, information and belief, formed after a reasonable inquiry, the

disclosure is complete and correct as of the time it is made.” Doc. 53 at ¶ 7 (emphasis added by

plaintiff). Plaintiff then concludes the motion with a plea that, “pursuant to Rule 26(a) and

26(g)(3), Defendants’ supplementation is due to be stricken and disallowed.” Id. at 2. Assuming

that plaintiff is referring to the signature of defendants’ counsel on the supplemental disclosures,

plaintiff does not explain in what manner he contends that defendants’ certification that “[t]he

following individuals are believed to have discoverable, non-privileged information relevant to

the disputed facts in this case” is false. Consequently, plaintiff has failed to establish that

sanctions should be imposed in this case for “improper certification.” 

6

school.” Defendants’ Opposition (doc. 55) at 3. Plaintiff also referenced Byrd in his

deposition testimony. Notwithstanding, plaintiff’s counsel argues that, although Mr. Byrd

was known to plaintiff, the fact that he would testify was unknown. However, in this

employment discrimination action challenging defendants’ failure to select plaintiff for an

administrative position, an individual who supervised the plaintiff when he served as a

substitute teacher was both clearly known to the plaintiff and should have been regarded

by him as an individual with relevant discoverable information concerning plaintiff’s

qualifications for the position(s) at issue. Plaintiff has failed to show any prejudice by

Mr. Byrd’s inclusion in the list set forth in defendants’ supplemental disclosures.

Based on the foregoing, the undersigned finds that the supplemental disclosures

(i.e., the ten named witnesses) were otherwise known to plaintiff during the discovery

period which ended on April 12, 2010. As such, under Rule 26(e) defendants were not

bound to identify these individuals as possible witnesses at an earlier time. Nevertheless,

defendants made the supplemental disclosure prior to the close of discovery7

 and

plaintiff has failed to show how he is prejudiced by this fact. See Fed. R. Civ. P. 37(c)(1). 

Case 1:08-cv-00340-WS-N Document 67 Filed 05/07/10 Page 6 of 7
7

 Consequently, it is ORDERED that plaintiff’s motion (doc. 53) to strike defendants’

supplemental disclosures is hereby DENIED. 

Done this 7th day of May, 2010.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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