Case 3:12-cv-00211-MW-CJK Document 80 Filed 04/08/13 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

REGINE MALEBRANCHE
SMITH,
Plaintiff,
v.

CASE NO. 3:12-cv-211-MW/CJK

SACRED HEART HEALTH

SYSTEMS, INC.,
Defendants.
_____________________________/

Order Denying Motions to Strike

Before this Court is Defendant Sacred Heart Health System, Inc.s (Sacred
Heart) Motion and Memorandum of Law to Strike Plaintiffs Affidavit Submitted
in Plaintiffs Response and Memorandum in Opposition to Defendants Motion for
Summary Judgment, ECF No. 67, and Motion and Memorandum of Law to Strike
the Examinations Under Oath of Jennifer June and Robin Bare, ECF No. 68.
Having reviewed Sacred Hearts motions, Plaintiff Regine Malebranche Smiths
(Smith) responses, and conducted a hearing on the motions, this Court rules as
follows.
Sacred Hearts Motion to Strike Smiths Affidavit, ECF No. 67, is
DENIED. In ruling on the pending motion for summary judgment, this Court will
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not give weight to any conclusory statements contained in the affidavit. Further,
this Court is cognizant of the law regarding contradictions between a persons
affidavit and deposition testimony and will appropriately apply it.
Sacred Hearts Motion to Strike Jennifer June and Robin Bares
examinations Under Oath, ECF No. 68, is also DENIED. First, this Court is
persuaded by the rational expressed in Intel Corp. v. VIA Technologies, Inc., 204
F.R.D. 450, 451-52 (N.D.Cal. 2001) and its progeny, and concludes that the
statements at issue are not documents subject to disclosure under Rule
26(a)(1)(A)(ii).

See also, Bell v. Lackawanna County, 892 F.Supp.2d 647

(M.D.Pa. 2012). Even if such statements are considered documents under Rule
26(a)(1)(A)(ii), such statements are work product and are protected up until the
moment such statements are filed. See e.g., Intel, 450 F.R.D. at 452. Finally, even
if the statements are documents within the meaning Rule 26 and are not work
product, this Court finds that any error would be harmless error under the unique
facts of this case. Sacred Heart was well aware of Robin Bare and Jennifer Junes
existence and their importance to this litigation.

Smiths Rule 26 Initial

Disclosure, ECF No. 68-1, Tab B, pgs. 2-3, lists Ms. Bare and Ms. June as two of
only six individuals who may have relevant knowledge. Both Ms. Bare and Ms.
June are former employees of Sacred Heart. There is nothing that prevented
Sacred Heart from obtaining its own sworn statements from Ms. Bare and Ms. June
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or from setting Ms. Bare and Ms. June for deposition to obtain relevant
information. Stated differently, statements at issue do not contain information that
Sacred Heart could not have obtained on its own.
For these reasons,
IT IS SO ORDERED:
1. Sacred Hearts Motion and Memorandum of Law to Strike Plaintiffs
Affidavit Submitted in Plaintiffs Response and Memorandum in Opposition to
Defendants Motion for Summary Judgment, ECF No. 67, is DENIED.
2. Sacred Hearts Motion and Memorandum of Law to Strike the
Examinations Under Oath of Jennifer June and Robin Bare, ECF No. 68, is
DENIED.
SO ORDERED on April 8, 2013.
s/Mark E. Walker
United States District Judge