The opinion of the court was delivered by: Hillman, District Judge
This matter comes before the Court on Defendant's Motion to Strike the Testimony of Plaintiff's Wife, for Sanctions and for Summary Judgment on Count II of Plaintiff's Complaint [Doc. 76]. For the reasons expressed below, Defendant's Motion will be denied.
The factual history of this case has been set out at length in the Court's November 4, 2009 Opinion, and will not be repeated except to the extent relevant to the current Motion. On February 16, 2006, Plaintiff was terminated from his employment with Defendant Amcor Flexibles, Inc. Several months later, on May 5, 2006, Plaintiff filed a charge of racial discrimination against Defendant with the New Jersey Division on Civil Rights and the Equal Employment Opportunity Commission (hereinafter "EEOC"). One month later, on June 5, 2006 at 5:13 a.m., Plaintiff alleges that a person called his home and screamed the words, "[n]iggers aren't qualified to work in this business. Why you niggers complaining. Niggers shouldn't be in this business" when his wife (hereinafter "Mrs. Taylor") answered the phone. Doc. 87-2, Exhibit C, Dep. 67. The caller ID function on Plaintiff's telephone indicated the call originated from a phone assigned to Rexam Healthcare, an organization owned by Defendant. Mrs. Taylor took a photograph of the caller ID. Plaintiff admits he was asleep when the call occurred, did not hear the exchange on the telephone and does not know who made the call. He also did not learn about the call until Mrs. Taylor informed him of it "later that morning." Id. at 70.
On July 27, 2007, Plaintiff filed his Complaint in this case, alleging counts for discrimination, retaliation, and defamation. During the course of discovery, Defendant served a deposition subpoena upon Mrs. Taylor. Shortly thereafter, on October 27, 2008, Plaintiff's counsel represented to the magistrate judge assigned to the matter, Judge Schneider, that Mrs. Taylor was unavailable to be deposed because of health concerns related to her in vitro fertilization treatments. Specifically, Mrs. Taylor's doctor advised her to avoid any stress while undergoing the in vitro fertilization procedure. After receiving this information, Judge Schneider, in an October 27, 2008 Order, stated that "1. Pretrial factual discovery . . . shall be concluded by . . . November 28, 2008" and "3. If Mrs. Taylor will testify at trial or if she will be submitting an Affidavit in opposition to defendant's Motion for Summary Judgment, she shall be made available for deposition." Doc. 24.
Approximately four months later, Defendant moved for Summary Judgment on Plaintiff's claims and Plaintiff moved for Partial Summary Judgment.*fn1 On November 4, 2009, the Court denied Plaintiff's Motion and granted in part and denied in part Defendant's Motion. Summary judgment was entered in favor of Defendant with respect to Counts I, discrimination, and III, defamation, and denied with respect to Count II, retaliation. On November 20, 2009, Defendant moved for reconsideration of the Court's November 4, 2009 Order denying summary judgment on Count II of Plaintiff's Complaint.
On June 25, 2010, the Court granted in part and denied in part Defendant's Motion for Reconsideration. The Court concluded "it did not specifically address the unavailability of Plaintiff's wife as a witness" and that her unavailability to testify "adds a layer of hearsay to any testimony regarding the contents of the allegedly retaliatory phone call she received and calls into question the admissibility of the proffered photograph of Plaintiff's caller-id. . . . [T]hese issues could potentially change the Court's holding on Plaintiff's retaliation claim and that further argument is necessary to determine the scope of Plaintiff's potential testimony regarding the phone call and photograph and whether such testimony would fall under any hearsay exceptions or is otherwise admissible before the Court can make a final determination on this issue." Doc. 67. The remainder of Defendant's arguments for reconsideration were denied as already considered and rejected by the Court's November 4, 2009 Opinion.
To address the hearsay issue, the Court held a hearing on July 21, 2010, and ruled that Defendant could take the deposition of Mrs. Taylor.*fn2 Defendant was permitted to question Mrs. Taylor on the circumstances of her previous unavailability as well the circumstances pertaining to the June 5, 2006 call. After the deposition, the Court opined that Defendant may make "any motion they feel appropriate as it relates to the admissibility of her [Mrs. Taylor's] testimony at trial. Both as [to] procedural matter[s] and as an evidentiary matter, and allow them to make a renewed dispositive motion on the remaining claim in the case based on that testimony." Doc. 75, Tr. 21.
At her deposition, Mrs. Taylor detailed the restrictions related to her in vitro fertilization treatments. She recalled that her doctor directed her to "lay low, stay of my feet, keep my feet up, [and] stay out of stress." Doc. 87-2, Exhibit C, Dep. 48. Mrs. Taylor additionally testified that she never asked her doctor whether she could give a deposition for the present case and admitted that the week of August 3, 2010 was the first time she ever discussed with anyone whether she could give a deposition. With respect to the alleged June 5, 2006 telephone call, Mrs. Taylor relayed the details of the call and acknowledged that she took a picture of the caller-id sometime after the call. Defendant now moves to Strike the Testimony of Mrs. Taylor, for Sanctions and for Summary Judgment on Count II of Plaintiff's Complaint.*fn3 Plaintiff opposes the Motion.
A. Mrs. Taylor's Deposition
Defendant argues Mrs. Taylor's deposition testimony should be stricken because Plaintiff acted in bad faith by refusing to provide her for deposition during the discovery period. Plaintiff contends sanctions are not warranted because Mrs. Taylor was undergoing in vitro fertilization treatments at that time and could not be deposed because of the stress involved in taking a deposition. Plaintiff further contends that Judge Schneider's October 27, 2008 Order did not indicate when Mrs. Taylor's deposition had to occur.
Federal Rule of Civil Procedure 37 authorizes courts to sanction parties for discovery violations. Courts have "broad discretion" concerning the "type and degree" of sanctions it imposes. Wachtel v. Health Net, Inc., 239 F.R.D. 81, 84 (D.N.J. 2006); see Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 538 (3d Cir. 2007) ("The decision to impose sanctions for discovery violations and any determination as to what sanctions are appropriate are matters generally entrusted to the discretion of the district court"). This broad discretion, however, is "limited by two standards." Capogrosso v. State Farm Ins. Co., No. 08-2229, No. 07-5324, 2010 WL 3404974, at * 8 (D.N.J. Aug. 26, 2010) (quoting Harris v. City of Philadelphia, 47 F.3d 1311, 1330 (3d Cir. 1995)). "First, any sanction must be 'just'; second, the [s]anction must be specifically related to the particular 'claim' which was at issue in the order to provide discovery." Id. (quoting Harris, at 47 F.3d at 1330).
Federal Rule of Civil Procedure 37 specifically provides that "if a party . . . fails to obey an order to provide or permit discovery," as a sanction, the court may prohibit the "disobedient party . . . from introducing designated matters in evidence." Fed. R. Civ. P. 37(b)(2)(A)(ii). Exclusion of evidence, however, is an "extreme sanction and normally not imposed absent willful deception or flagrant disregard" of a court order. Access 4 All, Inc. v. ANI Assocs., Inc., No. 04-6297, 2007 WL 178239, at * 3 (D.N.J. Jan. 27, 2007) (quoting in part Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3d Cir.1977) (overruled on other grounds, 777 F.2d 113 (3d Cir. 1985))) (further quotations, citations omitted). "The Third Circuit has, on several occasions, manifested a distinct aversion to the exclusion of important testimony absent evidence of extreme neglect or bad faith on the part of the proponent of the testimony." Mercedes Benz USA LLC v. Coast Automotive Group Ltd., No. 99-3121, 2008 WL 4378294, at * 3 (D.N.J. Sept. 23, 2008) (further quotations, ...