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Superior Consulting Services, Inc. v. Shaklee Corporation

United States District Court, M.D. Florida, Orlando Division

March 7, 2018

SUPERIOR CONSULTING SERVICES, INC., Plaintiff,
v.
SHAKLEE CORPORATION and SHAKLEE U.S., LLC, Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE.

         This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: THE SHAKLEE DEFENDANTS' MOTION TO STRIKE DECLARATIONS FROM UNDISCLOSED WITNESSES (Doc. No. 221)
FILED:January 19, 2018
THEREON it is RECOMMENDED that the motion be GRANTED IN PART and DENIED IN PART.

         I. FACTUAL BACKGROUND

         On December 14, 2017, Plaintiff filed the operative complaint (the “Complaint”) against Defendants. Doc. No. 159. Count I alleges direct federal trademark infringement under the Lanham Act, 15 U.S.C. § 1125; Count II alleges vicarious federal trademark infringement under the Lanham Act; Count III alleges a violation of Florida's Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201 et seq.; Count IV alleges common law trademark infringement; Count V alleges statutory trademark dilution under the Lanham Act and the Florida Registration and Protection of Trademarks Act, Fla. Stat. § 495.001; Count VI alleges unfair competition under the Lanham Act; and Count VII alleges tortious interference with advantageous business relationships under Florida common law. Id. at 14-23. Central to Plaintiff's claims are Defendants' alleged use of Plaintiff's marks for Healthprint.[1] Healthprint is an assessment tool created by Eleanor Cullen that constructs a personalized plan to achieve better health for the user.[2] Id. at 5.

         On January 2, 2018, Defendants filed their answer, affirmative defenses, and counterclaim (the “Counterclaim”). Doc. No. 166. Count I of the Counterclaim alleges trademark dilution under the Lanham Act and the Florida Registration and Protection of Trademarks Act; Count II of the Counterclaim is a claim for declaratory relief; and Count III of the Counterclaim is a FDUTPA claim. Id. at 38-41. Central to Defendants' counterclaims are Plaintiff's alleged dilution of Defendants' marks and alleged illegal use of its Healthprint marks to engage in the unlicensed practice of medicine. Id. at 33-41.

         On January 12, 2018, Plaintiff filed a motion seeking summary judgment on Counts I, III, IV, and VI of the Complaint, Counts II and III of the Counterclaim, and seven of Defendants' affirmative defenses (the “Motion for Summary Judgment”). Doc. No. 187. Attached to the Motion for Summary Judgment are twenty-four declarations. Doc. Nos. 188-211. On January 19, 2018, Defendants filed a motion requesting that the Court strike twenty-two of those declarations because they were made by witnesses that were either: 1) never identified as individuals having knowledge of a specific subject matter; 2) identified but later removed from Plaintiff's amended Rule 26 disclosures; or 3) identified for having knowledge of subject matters different than those contained in their respective declarations (the “Motion”).[3] Doc. No. 221. Defendants also request that the Court preclude any related testimony or evidence from the witnesses providing such declarations and award attorneys' fees and costs.[4] Id. at 25. On January 22, 2018, Plaintiff filed its response to the Motion, arguing that all of the witnesses and information thereto were either properly identified in its Rule 26 disclosures or otherwise made known during discovery. Doc. No. 223 at 6-21.

         II. APPLICABLE LAW

         Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires a party to disclose “the name … of each individual likely to have discoverable information[, ] along with the subjects of that information[, ] that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Rule 26(e)(1)(A) requires a party to supplement its disclosures “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.”

         The Advisory Committee notes to Rule 26(e) state that there is “no obligation to provide supplemental or corrective information that has been otherwise made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition or when an expert during a deposition corrects information contained in an earlier report.” Fed.R.Civ.P. 26(e), Advisory Committee's Notes to 1993 Amendment. Commentary regarding Rule 26's allowance of “information otherwise made known” states:

A party need not supplement with respect to information that has “otherwise been made known to the other parties during the discovery process or in writing.” For example, if a new witness is conspicuously identified during a deposition, the existence of that witness has been made known and the court may find that formal supplementation of disclosures or relevant discovery responses was not required. By way of contrast, the fact that a witness was referenced in documents that had been produced, or that a party made vague references at a deposition to other information that the party may use, have been found not sufficient. The operative premise is that parties need not engage in the pro forma amendment of their disclosures and written discovery responses when the purposes of supplementation have already been served….
It must be emphasized that a party is not automatically relieved of all of its duties to supplement just because the existence of a previously undisclosed witness or document comes to light during discovery. This is because the different disclosure and discovery obligations serve different purposes, not all of which will automatically be served once the new information is "otherwise made known" to the opposing party.
For example, imagine that a party prominently mentions a previously unidentified witness during a deposition and clearly indicates the things that person knows about. That revelation itself might satisfy Rule 26(e) with respect to an interrogatory that had asked for the names of witnesses; requiring the responding party to serve a supplemental interrogatory answer with the name of the new witness added to it would seem to be the type of pro forma act the rule is trying to avoid. But if the person was a favorable witness that the party wanted to use to support its claims or defenses, then the party would still need to supplement its Rule 26(a) initial disclosures unless it had been made clear during the deposition testimony not just that the person existed and had information but also that the party intended to use that person to support its claims.

         Steven S. Gensler, 1 Federal Rules of Civil Procedure: Rules & Commentary, Rule 26 (citing authority) (emphases added). Thus, the purpose behind Rule 26's allowance of “information otherwise made known” is to lessen pro forma amendments of disclosures and written discovery responses when the purposes of supplementation have already been served. Id. A party, however, is not automatically relieved of its duty to supplement just because the existence of a previously undisclosed witness or document comes to light during discovery. Id.

         Consistent with the above-referenced Advisory Committee notes and commentary, courts have found that there is no obligation to supplement Rule 26 disclosures when the witness's existence and knowledge were disclosed during the discovery process. See Chadwick v. Bank of Am., N.A., 616 F. App'x 944, 948 (11th Cir. 2015) (declining to strike an affidavit from a loan officer in support of a motion for summary judgment because the loan officer verified responses to interrogatories, and thus, her knowledge of the case should not have come as any surprise); Great Am. Assur. Co. v. Sanchuck, LLC, 8:10-cv-2568-T-33AEP, 2012 WL 3860429, at *1 (M.D. Fla. Sept. 5, 2012) (declining to strike a witness' testimony even though that witness was not mentioned in the plaintiff's Rule 26 disclosures because the defendant was already made aware of that person through deposition testimony).[5] However, courts have looked unfavorably on a party's attempts to shift the burden of disclosure and recognize that “mere identification of a witness is insufficient to negate a [party's] need to supplement.” Nat'l Union Fire Ins. Co. of Pittsburgh v. Tyco Integrated Sec. LLC, No. 13-CIV-80371-BLOOM/Valle, 2015 WL 11251736, at *1-3 (S.D. Fla. Jul. 29, 2015) (quoting Coene v. 3M Co., 303 F.R.D. 32, 47 (W.D.N.Y. 2014) (“A party's mere knowledge of the existence of a witness is insufficient to alert the party that the opposing party might call the witness in support of their claims or defenses.”); see also Dugas v. 3M Co., No. 3:14-cv-1096-J-39JBT, 2015 WL 3938777, at *2-4 (M.D. Fla. Jun. 26, 2015) (rejecting the plaintiff's argument that a late disclosure of a witness was harmless because while the identity and contact information of such witness were provided, the defendant was not properly informed of the subject matter of the witness's potential testimony); Oiller v. Sweetwater Union High Sch. Dist. 768 F.3d 843, 863 (9th Cir. 2014) (“That another witness has made a passing reference in a deposition to a person with knowledge or responsibilities who could conceivably be a witness does not satisfy a party's disclosure obligations. An adverse party should not have to guess which undisclosed witnesses may be called to testify.”). Thus, the issue of whether information required under Rule 26 was otherwise made known during discovery must be examined on a case-by-case basis in light of the underlying facts.

         Rule 37(c) allows the Court to strike information or witnesses not disclosed under Rule 26(a) or otherwise made known under Rule 26(e). Rule 37(c) states that in the event that “a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c).[6] The “party failing to comply with Rule 26 bears the burden of showing that its actions were substantially justified or harmless.” Murdick v. Catalina Mkt'g Corp., 496 F.Supp.2d 1337, 1345 (M.D. Fla. 2007). The Eleventh Circuit has held that it reviews the exclusion of a non-disclosed witness under an abuse of discretion standard and considers the following factors: “(1) the importance of the testimony; (2) the reason for ...


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