Ioannis NAKOULAS, Plaintiff, v. Victor EBADI, et al., Defendants 20 CV 678 (ENV) (CLP) United States District Court, E.D. New York Signed April 05, 2022 Counsel Zachary Scott Kaplan, Patricia Rose Lynch, Sacco & Fillas, LLP, Astoria, NY, for Plaintiff. Anthony R. Portesy, Kevin Scott Johnson, Ibrahim Abohamra, Hamra Law Group, PC, Great Neck, NY, Deborah R. Kick, Rankin Savidge PLLC, Mineola, NY, for Defendant Victor Ebadi. Anthony R. Portesy, Kevin Scott Johnson, Hamra Law Group, Great Neck, NY, Ibrahim Abohamra, Hamra Law Group, PC., Great Neck, NY, for Defendant The Sizzling Wok, Inc. Pollak, Cheryl L., United States Magistrate Judge MEMORANDUM AND ORDER *1 On February 6, 2020, plaintiff Ioannis Nakoulas filed this action, on behalf of himself and all others similarly situated, against defendants Victor Ebadi, The Sizzling Wok, Inc. (the “Sizzling Wok”), Pokebowl Station, Inc., Pokeworks NY2 LLC & Pokeworks NY3 LLC, Kureiji, Inc., and XYZ Corp., alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. and New York Labor Law §§ 650, et seq. On January 19, 2021, plaintiff voluntarily dismissed the action as to all the defendants except Ebadi and Sizzling Wok (“defendants”). (ECF Nos. 16, 20, 25). According to plaintiff, defendants employed him as a sushi chef in the restaurants named in the Complaint from September 2017 through September 2018. (Compl.[1] ¶¶ 35-36). Plaintiff alleges that he was not paid minimum wage, overtime compensation, or spread-of-hour pay in accordance with the Fair Labor Standards Act and New York Labor Law, and that defendants failed to provide him with proper wage notices and statements under the New York Labor Law. (Id. ¶¶ 63-91). On October 21, 2021, defendants filed a letter motion seeking sanctions against plaintiff for his alleged failure to produce discovery. (ECF No. 27). For the reasons set forth below, this Court denies in part and grants in part defendants’ letter motion. PROCEDURAL AND FACTUAL BACKGROUND On May 20, 2020, this Court held an Initial Conference, and the parties have been engaged in the exchange of discovery since that date. On December 15, 2020, defendants filed their first motion to compel plaintiff to respond to their discovery requests. (ECF No. 14). On March 8, 2021, this Court granted defendants’ motion, and Ordered plaintiff to supplement his production with “responsive documents and information or indicate that the plaintiff does not possess such information.” (ECF No. 18). On June 3, 2021, defendants filed a second motion to compel responsive discovery. (ECF No. 22). Although defendants acknowledged that plaintiff had filed a supplemental response on March 31, 2021, according to defendants, plaintiff's disclosure was still deficient. (Id.) During a status conference held on June 10, 2021, this Court again Ordered plaintiff to supply sufficient responses due by June 17, 2021. On August 27, 2021, the parties reported that plaintiff had been deposed on August 17, 2021. (ECF No. 26). During the deposition, plaintiff testified that he possessed text messages that he had exchanged with co-workers about their schedules that he had previously failed to provide in his responses to defendants’ discovery requests. (Id.) Defendants demanded production of the messages, and, in a subsequent phone call between plaintiff's counsel and defendants’ counsel, plaintiff's counsel agreed that she would deliver the demanded text messages to the defendants or explain why they were no longer in plaintiff's possession by September 1, 2021. (Id.) On October 21, 2021, defendants filed the instant motion asking the Court to sanction plaintiff for his failure to disclose relevant discovery. (Defs.’ Ltr.[2] at 1). DISCUSSION A. The Parties’ Arguments *2 Defendants contend that plaintiff's deposition testimony that he failed to disclose the text messages with his coworkers reveals that he “committed perjury in his interrogatories and other verified responses.” (Defs.’ Ltr. at 2-3). Defendants also argue that plaintiff's responses to Interrogatory Nos. 11 and 13 are insufficient. (Id. at 2). Interrogatory No. 11 seeks the “dates and time [sic] ... that Plaintiff ... work[ed] for any other business.” (Id.) Defendants state that, because plaintiff originally sued several corporate defendants, “[i]t is clear” that the plaintiff worked for other companies besides Sizzling Wok, but he has failed to disclose for which companies he worked. (Id.) Interrogatory No. 13 asks whether plaintiff “ha[s] ever been a party to litigation under the Fair Labor Standards Act[.]” (Id.) According to defendants, plaintiff was involved in a prior case in this district, which commenced on January 27, 2017 and closed on July 27, 2017, which plaintiff failed to disclose. (Id.) In their letter, defendants ask this Court to recommend that the District Court strike their answer and enter default against them. (Id. at 4-5).[3] Clearly, this is a mistake; defendants must be intending to seek sanctions against plaintiff, as demonstrated by their additional request that this Court preclude plaintiff from alluding to the content of the text messages during trial. (Id. at 5). Defendants also request that the Court Order plaintiff to pay defendants’ attorney's fees and costs incurred in relation to the discovery-related motions practice that has occurred to date. (Id.) In response, plaintiff argues that defendants have failed to show that they suffered any prejudice “whatsoever.” (Pl.’s Resp.[4] at 1). According to plaintiff, he has provided defendants with “all documentary discovery, responses to interrogatories, and a deposition that lasted many hours.” (Id.) Plaintiff contends that, while he initially objected to providing records of the text messages to which he testified during his deposition, on September 1, 2021, plaintiff's counsel served 51 pages of these text messages, which defendants failed to note in their letter motion. (Id. at 2). Moreover, plaintiff argues that his response to Interrogatory No. 11 could not “be any clearer.” (Id. at 1). According to plaintiff, “at all times” from September 2017 to September 2018, he worked for individual defendant Ebadi at the various restaurants identified in the Complaint. (Id.) According to plaintiff, “[t]here is absolutely no confusion” regarding where plaintiff claims to have worked during the year covered by the Complaint, and to the extent that there was any confusion, defendants could have explored this during plaintiff's deposition. (Id. at 2-3). In regards to Interrogatory No. 13, plaintiff argues that the prior Fair Labor Standards Act case that he “may” have been involved in commenced “some 10 months” before he claims to have worked for defendants, and thus information about that case is “highly irrelevant[.]” (Id. at 2) B. Analysis Under Federal Rule of Civil Procedure 26(e)(1)(A), a party engaged in discovery must supplement or correct its disclosure or response 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. *3 The duty to supplement applies regardless of whether the information was available at the time of the initial disclosure or whether it is newly discovered evidence. Fed. R. Civ. P. 26(e) advisory committee's note to 2007 amendment. Rule 37(c) provides that, “[i]f a party fails to provide information” as required by Rule 26(e), “the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, the court explained that “[s]ubstantial justification may be demonstrated where there is justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request, or if there exists a genuine dispute concerning compliance.” 280 F.R.D. 147, 159 (S.D.N.Y. Feb. 15, 2012) (internal quotation marks and citations omitted). Where there is an “absence of prejudice” to the other party, the delay in disclosure or the failure to disclose may be considered “harmless.” Id. (citing Williams v. County of Orange, No. 03 CV 5182, 2005 WL 6001507, at *3 (S.D.N.Y. Dec. 13, 2005)). When a party violates its discovery obligations, the Court has “wide discretion” in deciding what sanctions are appropriate under Rule 37. Design Strategy, Inc. v. Davis, 469 F.3d 284, 294 (2d Cir. 2006). In determining appropriate sanctions, courts consider: “(1) the party's explanation for the failure to comply with the discovery rules; (2) the importance of the precluded evidence; (3) the prejudice suffered by the opposing party as a result of having to prepare to address the new evidence; and (4) the possibility of a continuance.” Lujan v. Cabana Management, Inc., 284 F.R.D. at 68 (citing Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (citations omitted)). While plaintiff's counsel claims to have objected to the production of the contested text messages in plaintiff's letter response, plaintiff's deposition testimony indicates that plaintiff failed to disclose the existence of the text messages because he believed that they were not relevant to this litigation. To the extent that plaintiff failed to disclose the existence of the text messages, he should have notified defendants that he had the text messages but objected to their disclosure. However, discovery has not closed in this matter and the Court has yet to schedule a trial; thus, plaintiff's supplemental disclosure of the text messages was timely and obviated any prejudice that defendants suffered through plaintiff's failure to notify defendants that he was in possession of the text messages. See, e.g., IMIG, Inc. v. Omi Elec. Appliance Co. Co., No. 16 CV 628, 2020 WL 7078583, at *6 (E.D.N.Y. Nov. 30, 2020) (finding that a supplemental disclosure was timely where it occurred “months prior to the fact discovery deadline”); PopSockets LLC v. Quest USA Corp., No. 17 CV 3653, 2018 WL 2744707, at *3 (E.D.N.Y. June 7, 2018) (holding that the filing of supplemental contentions was timely under Rule 26(e), where the supplemental filing occurred before the close of discovery). Plaintiff is Ordered, however, to formally confirm that he has now disclosed all of the requested text messages. If there are outstanding text messages, plaintiff must produce them. *4 In response to Interrogatory No. 11, plaintiff claims to have listed every business that he worked for during the period relevant to this litigation in the Complaint. If this is true, then it will be no burden at all for plaintiff to formally respond to defendants’ interrogatory by repeating that list of businesses that he worked for during the relevant period. As such, plaintiff is Ordered to formally respond to Interrogatory No. 11 by listing the dates and times that he worked for businesses and at locations other than Sizzling Wok during the relevant period. If plaintiff is unable to identify the exact dates and times that he worked for other businesses and at other locations, then he must state as much in his formal response to Interrogatory No. 11. Regarding Interrogatory No. 13, plaintiff's past involvement in Fair Labor Standards Act lawsuits could potentially lead to discovery relevant to this case. Tello v. A.N.G. Diner Corp., No. 17 CV 749, 2018 WL 3617940, at *2 (E.D.N.Y. Apr. 18, 2018); see, e.g., S.W. v. City of New York, No. 09 CV 1777, 2010 WL 4791712 *2-4 (E.D.N.Y. November 18, 2010) (allowing use of deposition testimony of witnesses in prior litigation where “there is substantial overlap in the subject matter for which the [prior] deposition testimony may be relevant in this case”). Moreover, defendants’ request that plaintiff identify the actions that he was involved in imposes only a minimal burden on plaintiff. Plaintiff is thus Ordered to respond to Interrogatory No. 13 by indicating whether he has ever been a party to litigation under the Fair Labor Standards Act, and to enumerate each case with which he has been involved. Finally, fee shifting is “ordinarily” inappropriate. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). While plaintiff's conduct throughout the course of discovery may have caused unnecessary delay and required motion practice on the part of defendants, the Court declines to enter an Order of preclusion or impose sanctions at this time. Plaintiff is warned, however, that if he fails to comply with this Order, the Court will impose sanctions under Rule 37. CONCLUSION For the reasons set forth above, the Court denies in part and grants in part defendants’ motion. SO ORDERED. Footnotes [1] Citations to “Compl.” refer to the Complaint, filed on February 6, 2020, ECF No. 1. [2] Citations to “Defs.’ Ltr.” refer to defendants’ Third Letter Motion To Dismiss For Lack Of Prosecution & In The Alternative Preclude Plaintiff From Testifying filed on October 21, 2021, ECF No. 27. [3] Specifically, defendants letter states that “[d]efendants’ behavior has been deliberate, has [sic] continued throughout discovery despite multiple Court Orders seeking to ensure compliance and despite the Court's warning that they could be subject to sanctions, the [sic] Court should strike their Answer and enter default.” (Defs.’ Ltr. at 4). This Court suspects that defendants copied and pasted this language from another submission or from an opinion or order in a prior case. Regardless of this language's origin, this is the first time that this Court has seen a request by defendants to enter a default against themselves. [4] Citations to “Pl.’s Resp.” refer to plaintiff's letter response to defendants’ letter motion, filed on October 28, 2021, ECF No. 28.