United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE.
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.
FILED:January 19, 2018
THEREON it is RECOMMENDED
that the motion be GRANTED IN PART and
DENIED IN PART.
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. Healthprint is an assessment tool created
by Eleanor Cullen that constructs a personalized plan to
achieve better health for the user. Id. at 5.
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.
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”). 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. 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.
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.”
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.
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.
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). 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.
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). 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