Kellogg v. J.C. Penney Corp. Inc.
A court may excuse a failure to comply with discovery timely, if the plaintiff's counsel had extenuating personal circumstances, and the plaintiff and her attorney did not act willfully or in bad faith. Allegedly, the plaintiff, Emily Kellogg, slipped and fell at a J.C. Penney store in Waterbury, Conn. Kellogg sued J.C. Penney in Connecticut Superior Court, and J.C. Penney removed the suit to the U.S. District Court. Counsel agreed to comply with discovery requests, on or before Oct. 3, 2011. The plaintiff answered interrogatories and produced hospital records in December 2012. The District Court ordered the plaintiff to supplement discovery, on or before March 22, 2012. The plaintiff did not comply. The plaintiff's attorney apparently indicated that a former law firm associate was responsible, the law firm would make the plaintiff's case a top priority, and the plaintiff would supplement discovery, on or before Aug. 31, 2012. In November 2012, the defendant moved to dismiss and alleged that the plaintiff failed to comply with amended discovery deadlines. The plaintiff's attorney claimed that the attorney had extenuating personal circumstances and that clerical staff were also at fault. When ruling whether to sanction a party who fails to comply with discovery timely, a court may consider: 1.) the willfulness of noncompliance; 2.) the efficacy of other sanctions; 3.) the duration of noncompliance; and 4.) whether the noncompliant party was warned that noncompliance could result in sanctions. The court found that the plaintiff and her attorney did not act willfully or in bad faith. "Although plaintiff's noncompliance with discovery orders has been protracted and continued after counsel was warned that further noncompliance might result in sanctions," wrote the court, "it does not appear that either plaintiff or her counsel acted willfully or in bad faith." The court ordered the plaintiff's counsel to pay reasonable attorneys' fees and expenses of J.C. Penney and to produce experts' reports, pictures, medical records and releases and damages analyses, on or before Feb. 4, 2013. The court warned the plaintiff and her attorney that failure to comply timely may result in the dismissal of the plaintiff's suit.