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Chavez v. Arancedo

United States District Court, S.D. Florida

July 19, 2018

NARCISA PEREZ CHAVEZ, Plaintiff,
v.
BERNARDA M. ARANCEDO, Defendant.

          ORDER ON PLAINTIFF'S MOTION TO STRIKE, OR IN THE ALTERNATIVE TO RE-DEPOSE A WITNESS

          EDWIN G. TORRES, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Narcisa Perez Chavez (“Plaintiff”) motion to strike, or in the alternative, to re-depose a witness Thania Vernon (“Ms. Vernon”). [D.E. 64]. Bernarda M. Arancedo (“Defendant”) responded to Plaintiff's motion on July 5, 2018 [D.E. 68] to which Plaintiff replied on July 12, 2018. [D.E. 70]. Therefore, Plaintiff's motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authority, and for the reasons discussed below, Plaintiff's motion is DENIED.

         I. BACKGROUND

         Plaintiff filed this action on January 2, 2017 and alleges that Defendant violated the Fair Labor Standards Act (“FLSA”) and the Florida Minimum Wage Act (“FMWA”). Plaintiff claims that she had an employee relationship with Defendant from January 23, 2012 through December 30, 2016. Plaintiff's earnings purportedly fell below the Federal and Florida minimum wage for the services she performed as a maid at Defendant's personal residence. Defendant denies all of Plaintiff's allegations and the matter is currently set for trial on October 9, 2018 with a discovery deadline of June 28, 2018.

         II. APPLICABLE LEGAL PRINCIPLES AND LAW

         Federal Rule of Civil Procedure 26(a)(2)(A) provides that “a party must disclose to the other parties the identity of any witnesses it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed.R.Civ.P. 26(a)(2)(A). This disclosure must include “a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B). The report must also contain the following information: a complete statement of all the opinions the expert plans to express and the basis for them, the data considered by the expert in forming the opinions, any exhibits intended to be used in summarizing or supporting the opinions, the experts' qualifications including a list of all authored publications in the previous ten years, a list of all the other cases in which the witness testified as an expert during the previous four years, and a statement of the compensation the expert is to receive for the study and testimony in the case. Fed.R.Civ.P. 26(a)(2)(B)(i)-(vi). These disclosures must be made “at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(C).

         “Because the expert witness discovery rules are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise . . . compliance with the requirements of Rule 26 is not merely aspirational.” Cooper v. Southern Co., 390 F.3d 695, 728 (11th Cir. 2004) (internal citation omitted), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). To this end, Rule 37(c)(1) provides a self-executing sanction for untimely expert reports. In relevant part, Rule 37(c)(1) states that [i]f a party fails to provide the information required by Rule 26, “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)(1).

         Substantial justification is “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.” Ellison v. Windt, 2001 WL 118617(M.D. Fla. Jan. 24, 2001) (quotation and citation omitted). A failure to timely make the required disclosures is harmless when there is no prejudice to the party entitled to receive the disclosure. See Home Design Servs. Inc. v. Hibiscus Homes of Fla., Inc., 2005 WL 2465020 (M.D. Fla. Oct. 6, 2005). The party failing to comply with Rule 26(a) bears the burden of establishing that its non-disclosure was either substantially justified or harmless. See Surety Assocs., Inc. v. Fireman's Fund Ins. Co., 2003 WL 25669165 (M.D. Fla. Jan. 7, 2003).

         III. ANALYSIS

         On May 14, 2018, Defendant served Plaintiff with a two page affidavit of its expert witness, Ms. Vernon. Plaintiff then noticed Ms. Vernon's deposition for June 18, 2018. The deposition took place as scheduled and Ms. Vernon provided testimony regarding her affidavit. On June 20, 2018, Defendant served Plaintiff with a four page supplemental affidavit of Ms. Vernon - including thirty-five pages of supporting documentation. Plaintiff claims that none of these materials had been produced before Ms. Vernon's deposition. Plaintiff alleges that Defendant contacted Ms. Vernon after her deposition to produce a supplemental affidavit to refute what Defendant learned through the questioning of the witness. Plaintiff argues that the supplemental affidavit is substantially different than the previous one and that it seeks to bolster Defendant's affirmative defenses.[1]

         Because discovery in this case closed on June 28, 2018, Plaintiff claims that it was unable to question Ms. Vernon on her supplemental affidavit and that Plaintiff has been prejudiced as a result of Defendant's late disclosure. To remedy this violation of the Federal and Local Rules, Plaintiff argues that the Court should (1) strike Ms. Vernon as a witness and (2) set aside her testimony for the duration of this case. Plaintiff believes that she will otherwise be significantly prejudiced because Defendant did not serve the supplemental affidavit as required.

         Alternatively, Plaintiff requests that the Court permit a second deposition to occur within one week of the Court's Order and award Plaintiff her reasonable attorneys' fees and costs.

         Defendant argues, in response, that Plaintiff is entitled to no relief because Plaintiff elected to take Ms. Vernon's deposition prior to the Court ordered filing deadlines and is bound by that tactical decision. More specifically, Defendant claims that she served Ms. Vernon's expert affidavit on May 14, 2018, which was the deadline provided in the Court's Scheduling Order. [D.E. 32]. Defendant then claims that she timely served Plaintiff her supplemental Rule 26(e) disclosures as required on May 31, 2018. Defendant also served Ms. Vernon's supplemental expert affidavit on June 20, 2018 in accordance with the Court's Docket Order that granted Defendant's motion for an extension of time. [D.E. 63] (“Defendant shall have until June 20, 2018 to serve its disclosures, based on sufficient good cause shown in the motion.”).

         Defendant suggests that Plaintiff should not be allowed to depose Ms. Vernon a second time because Plaintiff should have known that June 20, 2018 was the deadline to serve a supplemental expert affidavit. Defendant also claims that Plaintiff should have known that June 21, 2018 was the deadline for Defendant to submit responses to Plaintiff's supplemental request for documents. In other words, Defendant argues that it was obvious that Plaintiff would not have all these materials until June 21, 2018 but that Plaintiff elected to take Ms. Vernon's deposition anyways on June 18, 2018. If Plaintiff decided to wait until all of these items had been provided, Defendant suggests that Plaintiff would have been in a position to question Ms. Vernon about all of these materials before discovery closed on June 28, 2018. ...


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