Opinion
Case No. 8:03-cv-415-T-26TGW.
September 14, 2004
ORDER
Before the Court is the United States' Motion to Strike Declaration of Lou Mayer (Dkt. 108), the United States' Motion to Strike Portions of the "Authenticating Affidavit of Joe Alfred Izen, Jr." (Dkt. 107), and Defendants' Response. (Dkt. 114). After careful consideration of the arguments of counsel and the applicable law, the Court concludes that the Motion to Strike Declaration of Lou Mayer (Dkt. 108) should be denied, and the Motion to Strike Portions of the "Authenticating Affidavit of Joe Alfred Izen, Jr." should be granted.
Defendants have not responded to the Motion to Strike Mr. Izen's affidavit. Nevertheless, the Court has reviewed the motion and applicable law and find the Government's motion well-taken.
Procedural Facts
The Government filed this action on March 6, 2003. After several events that are irrelevant to the issues to be decided in this Motion, an Amended Case Management and Scheduling Order was entered on January 23, 2004. (Dkt. 68). The Order fixed the discovery cut-off as July 2, 2004, and the dispositive motion filing deadline as August 16, 2004. The Order set the pretrial conference for October 6, 2004, and a bench trial for the trial term of November 2004.
On July 6, 2004, four days after the discovery cut-off, the Government filed a Motion for Summary Judgment and Permanent Injunction (Dkt. 81), along with various declarations, including those of Charles S. Eby (Dkt. 84) and Jean B. Eby. (Dkt 90). This Court extended the time for Defendants to respond (Dkt. 97), and Defendants responded and filed opposing affidavits, including the Declaration of Lou Mayer in Opposition to Plaintiff's Motion for Summary Judgment, which was filed August 11, 2004. (Dkt. 101). The Government now seeks to have this Court strike the declaration of Lou Mayer. (Dkt. 108).
Argument
The Government contends that Lou Mayer was never disclosed as a potential witness on the topics contained in his declaration. It argues that Defendants failed to meet their continuing obligation to disclose Lou Mayer as a witness pursuant to Rule 26, and, therefore, the declaration of Lou Mayer should be stricken pursuant to Rule 37(c)(1). Specifically, the Government contends that Defendants have no substantial justification for failing to disclose Lou Mayer and that such omission is not harmless because the declaration of Lou Mayer rebuts the affidavit testimony of Charley and Jean Eby and the Government did not know that Defendants would use Lou Mayer in this particular case. The Government does not deny that it was well aware of Lou Mayer and his "long history with the Ebys." (Dkt. 108 at pg. 3).
Defendants assert that the declaration of Lou Mayer was prepared as rebuttal and impeachment testimony to the hearsay statements of the Government's affiants' testimony. Having been presented with this affidavit testimony after the discovery cut-off in the context of a motion for summary judgment, Defendants argue they were left with no choice other than to submit the rebuttal declaration of Lou Mayer. Defendants correctly assert that the rules governing the listing of trial witnesses do not apply in this situation.
Analysis
Rule 37(c)(1) provides in relevant part as follows:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.
The accompanying Advisory Committee Notes for this 1993 amendment to Rule 37 provide in pertinent part:
Subdivision (c). The revision provides a self-executing sanction for failure to make a disclosure required by Rule 26(a), without need for a motion under subdivision (a)(2)(A).
Paragraph (1) prevents a party from using evidence any witnesses or information that, without substantial justification, has not been disclosed as required by Rules 26(a) and 26(e)(1). This automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56. As disclosure of evidence offered solely for impeachment purposes is not required under those rules, this preclusion sanction likewise does not apply to that evidence.
Limiting the automatic sanction to violations "without substantial justification," coupled with the exception for violations that are "harmless," is needed to avoid unduly harsh penalties in a variety of situations: e.g. the inadvertent omission from a Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all parties; the failure to list as a trial witness a person so listed by another party; or the lack of knowledge of a pro se litigant of the requirement to make disclosures. In the latter situation, however, exclusion would be proper if the requirement for disclosure had been called to the litigant's attention by either the court or another party.
28 U.S.C.A. Fed.R.Civ.P. 37, Advisory Committee Notes (2004 cumulative pocket part) (emphasis added)
The Government cites Wilkerson v. Florida Power and Light Co., 2002 WL 31553548, *1 (M.D. Fla. Aug. 27, 2002), and Kramer v. Gwinett County, Ga., 306 F. Supp. 2d 1219, 1224-25 (N.D. Ga. 2004), to support the striking of an affidavit of a non-disclosed witness. Defendants cite Latner v. Delta-Ha, Inc., No. IP 01-993-CH-K, 2002 WL 31255473 (S.D. Ind. 2002), for the proposition that "[i]n responding to a motion for summary judgment, a party is not limited to obtaining evidence from only those witnesses previously identified in discovery." The Latner court continued:
Defendants also cite Schmitt v. Beverly Hilton Rehab. Servs., 993 F. Supp. 1354, 1359 (D. Kan. 1998), which held that Rule 56(e) does not explicitly require that affiants be listed as trial witnesses, and Taylor v. St. Louis S.W. Ry. Co., 746 F. Supp. 50, 53 (D. Kan. 1990), which was decided before the 1993 amendment of Rule 37, and D.L. v. Unified Sch. Dist. #497, 270 F. Supp. 2d 1217, 1236-38 (D. Kan. 2002), which was followed bySchmitt and Taylor.
Even after the close of formal discovery, a party may keep digging informally for additional evidence, and especially for rebuttal and impeachment evidence. In this case, the affidavits in question were offered, at least in substantial part, in an attempt to rebut and impeach testimony . . . And if there were to be a trial in this case, prejudice . . . could be avoided by giving them [the objecting party] an opportunity to take depositions of the new witnesses.Id. at 31255473, *2.
There are other cases across the circuits which have dealt with motions filed pursuant to Rule 37(c)(1), when the party opposing a summary judgment motion has filed evidence not previously disclosed. In general, the courts look to whether the discovery deadline has closed and whether the opposing affidavit or declaration was filed as rebuttal or impeachment testimony. Finally, in accordance with Rule 37(c)(1), the courts consider whether the allegedly offending party had substantial justification for failing to previously disclose the evidence and whether such failure is harmless.
See, e.g., Jones v. E.R. Snell Contractor, Inc., No. CIV.A.1:01-CV-2038-T, 2004 WL 1941182, *3 (N.D. Ga. Jan. 30, 2004) (excluding evidence filed in conjunction with summary judgment motion raising new claim not previously disclosed under Rule 26(e)); Go Med. Indus. PTY, Ltd. v. Inmed Corp., 300 F. Supp. 2d 1297, 1307 (N.D. Ga. 2003) (finding no substantial justification for evidence of new claim not previously disclosed as required by Rule 26(a)(1)(A)); Montefiore Med. Ctr. v. American Prot. Ins. Co., 226 F. Supp. 2d 470, 472-75 (S.D.N.Y. 2002) (holding that prior failure to provide expert disclosure prior to filing affidavit in connection with motion practice does not constitute appropriate basis for excluding affidavit where discovery still open).
The issue at this juncture is not whether Defendant failed to disclose that it might call Lou Mayer as a trial witness. This case, although close, has not progressed to the point in time for the exchange of witness lists pursuant to Local Rule 3.06 of the Middle District of Florida, the pretrial conference has not yet transpired, and the pretrial order has not yet been entered. The issues are whether Defendants had a duty to disclose the content of Lou Mayer's declaration before they filed it in opposition to the summary judgment motion, and, if so, whether substantial justification existed for the failure to disclose and then, whether the failure to disclose was harmless to the Government.
The pretrial conference is scheduled for October 6, 2004, before Judge Thomas G. Wilson.
Defendants did not have had a duty to disclose rebuttal or impeachment witnesses pursuant to general Rule 26 disclosure requirements. If Lou Mayer was used in the context of this motion for summary judgment as a rebuttal and impeachment witness to the Ebys' affidavits, then Defendants had no duty to previously disclose Lou Mayer. There is no doubt that the Government has been aware of Lou Mayer for quite some time. It cannot claim surprise with respect to his existence and his long-term relationship with the Ebys. After careful review of the declaration of Lou Mayer, the affidavits of the Ebys, and the entire file, the Court concludes that Lou Mayer's declaration has been submitted in the form of a rebuttal and impeachment witness for the purposes of ruling on this motion for summary judgment and therefore Defendants had no duty to previously disclose him.
The Court must next consider substantial justification and harmlessness under Rule 37. Some district courts in this circuit have adopted the following guidelines for determining what constitutes "substantial justification" as that term is used in Rule 37:
Substantial justification requires 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. The proponent's position must have a reasonable basis in law and fact. The test is satisfied if there exists a genuine dispute concerning compliance.See Burney v. Rheem Mfg. Co., Inc., 196 F.R.D. 659, 691 (M.D. Ala. 2000) (quoting Nguyen v. IBP. Inc., 162 F.R.D. 675, 680 (D.Kan. 1995), which cites Pierce v. Underwood, 487 U.S. 552 (1988)). Defendants' position that they were unaware of the need to use Lou Mayer as a rebuttal witness in these summary judgment proceedings until the Eby affidavits were filed is well-taken. The point in time at which Defendants legitimately became aware of the need to file Lou Mayer's affidavit came after discovery cut-off. Indeed, the filing of the motion for summary judgment came after discovery cutoff. This Court is of the opinion that a genuine dispute existed as to whether Defendants should have known to disclose Lou Mayer under Rule 26 before the filing of the motion for summary judgment. Consequently, the Court finds that Defendants have carried their burden of showing substantial justification for nondisclosure.
See also Stallworth v. E-Z Serve Convenience Stores, 199 F.R.D. 366, 368 (M.D. Ala. 2001) (quoting Burney, which quotes Nguyen); KW Plastics v. United States Can Co., 199 F.R.D. 687, (M.D. Ala. 2000) (quoting Burney, which quotesNguyen); Ellison v. Windt, No. 6:99-CV-1268-ORLKRS, 2001 WL 118617, *2 (M.D. Fla. Jan. 24, 2001) (quoting Nguyen); Chapple v. State of Alabama, 174 F.R.D. 698 (M.D. Ala. 1997) (quotingNguyen, which cites Pierce).
The determination of the "harmlessness" prong is not only whether the Government may suffer an unsuccessful summary judgment ruling. As emphasized earlier, the Government was not surprised by the existence of Lou Mayer or his relationship with the Ebys. In this sense, there has been no harm or prejudice to the Government, particularly in view of the fact that the declaration of Lou Mayer was offered to rebut and to impeach the hearsay testimony in the affidavits filed by the Government. Having analyzed the filing of Lou Mayer's declaration under the circumstances in this case, and having reviewed the entire record, the Court exercises its discretion to deny the striking of Lou Mayer's declaration and will consider it in ruling on the Government's motion for summary judgment. See Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993) (holding that district court has broad discretion to control discovery and court's dismissal with prejudice, although most severe sanction under Rule 37, was affirmed).
The issue of whether Lou Mayer may be called as a witness at trial, however, is not now before the Court, and the Court will not venture to guess about any future rulings.
It is therefore ORDERED AND ADJUDGED as follows:
(1) The United States' Motion to Strike Declaration of Lou Mayer (Dkt. 108) is DENIED.
(2) The United States' Motion to Strike Portions of the "Authenticating Affidavit of Joe Alfred Izen, Jr." (Dkt. 107) is GRANTED.
DONE AND ORDERED.