LAWANNA TYNES, Plaintiff, v. FLORIDA DEPARTMENT OF JUVENILE JUSTICE, Defendant CASE NO. 18-62891-CIV-DIMITROULEAS/SNOW United States District Court, S.D. Florida Entered on FLSD Docket August 05, 2020 Counsel Glenn Ricardo Miller, North Miami Beach, FL, for Plaintiff. James Orrin Williams, Jr., Philip Benjamin Wiseberg, Williams, Leininger & Cosby, P.A., North Palm Beach, FL, for Defendant. Snow, Lurana S., United States Magistrate Judge ORDER *1 THIS CAUSE is before the Court on Defendant's Motion In Limine or, in the alternative, Motion to Strike Witness [sic] and Exhibits. (ECF No. 54) On July 15, 2020, United States District Judge William P. Dimitrouleas entered an Order on the Motion in Limine addressing evidentiary issues and referred to the undersigned United States Magistrate Judge the alternative request in the Motion seeking to strike witnesses and exhibits. (ECF No. 72) I. BACKGROUND The Plaintiff, a Black female, filed this employment discrimination case on November 28, 2018, alleging that she was discriminated against on the basis of her race and sex. According to the Complaint, the Plaintiff was employed as a Superintendent since 2007, and was transferred to the Broward Juvenile Justice Center on August 14, 2015, as a Detention Superintendent. Complaint (ECF No. 1) at ¶¶ 13-4. She was terminated from her employment on December 11, 2015, for allegedly violating an administrative code provision. Id. at ¶¶ 13, 31. The Plaintiff filed a charge of discrimination on December 16, 2015. Id. at ¶ 8. The Equal Employment Opportunity Commission found that “the evidence obtained in the investigation establishes reasonable cause to believe that discrimination on the basis of sex, (female), and race, (Black), occurred .... [and that] records show that similarly situated non-Black male superintendents who committed similar or more egregious offenses were not terminated.” Letter of Determination dated March 7, 2017 (ECF No. 1 at 15), and the case was forwarded to the Department of Justice on April 27, 2017, for “further processing.” (ECF No. 1 at 17) After it was determined that the Department of Justice would not file suit on the Plaintiff's behalf, the EEOC issued a Notice of Right to Sue dated August 30, 2018. Complaint (ECF No. 1) at ¶ 11; Notice (ECF No. 1 at 18). On February 8, 2019, the Defendant filed its Answer and Affirmative Defenses, alleging, inter alia, that the termination of the Plaintiff's employment was for a legitimate, non-discriminatory and non-retaliatory reason. Answer (ECF No. 11) The Court set a discovery deadline of December 11, 2019. During that time the parties engaged in extensive discovery. On March 4, 2020, Plaintiff served Defendant with Supplemental Initial Disclosures listing fifteen additional witnesses and numerous new exhibits. (ECF No. 54-1) Plaintiff also listed these witnesses and exhibits on her Witness and Exhibit List. (ECF No. 54-2) On March 20, 2020, Defendant filed this Motion in Limine or, in the alternative, Motion to Strike Witness[es] and Exhibits. (ECF No. 54) Defendant seeks to exclude certain late disclosed witnesses and exhibits under Federal Rule of Civil Procedure 26 and 37. At the time of filing this Motion, the jury trial of this matter was scheduled for the two week calendar commencing April 6, 2020. However, due to the Administrative Orders entered in response to the COVID-19 pandemic, the jury trial of this cause was canceled. According to the scheduling Order, calendar call is currently scheduled for August 14, 2020. On August 14, 2020, in light of Administrative Order 2020-41, the District Court will be resetting the jury trial of this action for sometime after October 13, 2020. II. DISCUSSION A. Federal Rules of Civil Procedure Rule 26 and Rule 37 *2 Rule 26 requires a party to provide initial disclosures which includes “the name, address, and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(A)(1)(A)(I). The rule also requires that the party supplement its initial disclosures at appropriate intervals throughout the litigation when it learns that the information originally provided turns out to be incomplete. Fed. R. Civ. P. 26 (e). To ensure compliance the rules provide that if a party fails to disclose a witness or exhibit they may not be allowed to use the exhibit or permit the witness to testify at trial. Fed. R. Civ. P. 37(c)(1). An exception to the rule exists only if “the failure was substantially justified or harmless.” Id. “The burden of establishing that a failure to disclose was substantially justified or harmless rest on the non-disclosing party.” Jetport, Inc. v. Landmark Aviation Miami, LLC, No. 1:16-CV-23303-UU, 2017 WL 773409, at * 2 (S.D. Fla. July 25, 2017). When determining whether to exclude the testimony of an untimely disclosed witness the court should consider the following: “(1) the importance of the testimony; (2) the reason for the failure to disclose the witness earlier; and (3) the prejudice to the opposing party if the witness is allowed to testify.” Alvarado v. United States, No. 10-CV-22788, 2011 WL 1769097, at * 1 (S.D. Fla. May 4, 2011). B. Defendant's Motion to Exclude Witnesses and Exhibits On March 4, 2020, Plaintiff supplemented her initial disclosures adding fifteen additional witnesses and numerous exhibits. More than two weeks later, Defendant filed its Motion in Limine and alternative Motion to Strike Witnesses and Exhibits. Subsequently, the jury trial of this cause was canceled. Defendants have now been on notice of the witnesses and exhibits that Plaintiff intends to call and produce at trial for the past five months. The undersigned evaluates the issues raised in light of the current schedule of the jury trial of this matter. As stated above, the undersigned notes that the jury trial of this case will not be rescheduled prior to October 13, 2020. In its Motion, Defendant does not argue that it was unaware of most of the witnesses at issue but rather solely argues that it was only unaware that Plaintiff intended to call those witnesses.[1] Defendant further argues that Plaintiff's decision to call these additional witnesses would have impacted its decision to depose a witness. However, the undersigned notes that Defendant only affirmatively states that it would have taken the deposition of two witnesses, Roby Cedon the EEOC investigator and “Gordon Weeks, the Chief Assistant Public Defender at Broward County who appears to have been involved with youth at the Broward Regional Detention Center.” (ECF No. 54 at 5); see also (ECF No. 70 at 2-3) Defendant also argues that some of these additional witnesses have no relevant information. It appears that both parties were aware of these individuals during the discovery period.[2] Plaintiff asserts however that decisions to list some witnesses, including Cedon and Weeks, were made due to Defendant's failure to provide timely discovery responses resulting in the need to pursue information from other sources as well as discovery received after the discovery cut-off. (ECF No. 67 at 3) *3 The issue before the Court is whether these individuals should be excluded because of the timing of their identification as witnesses. In the five months that have passed since Plaintiff disclosed her additional witnesses, Defendant did not file a motion to take the deposition of any of these witnesses out of time nor did it advise the Court how many depositions it already has conducted in this case. Defendant also argues that Plaintiff should be precluded from listing certain exhibits including Inspector General Annual Reports, numerous news articles, incident reports concerning Assistant Secretary Fosler, a charge of discrimination, and several complaints against Fosler. (ECF No. 54-2, ¶¶ 6, 19-24, 36, 41-43, 45, 67, 73 and 104-107) Plaintiff responds to the objection to these exhibits by asserting, among other reasons, that Defendant did not respond to timely discovery requests and Plaintiff had to obtain much of the information through public records requests or other sources. Defendant also acknowledged that some of the information was “unintentionally excluded” from Defendant's discovery responses. (ECF No. 67 at 3) Defendant conceded that it “inadvertently failed to provide Plaintiff with the technical assistance reports” and also “unintentionally failed to provide some of the complaints concerning Assistant Secretary Dixie Fosler.” (ECF No. 67 at 4 (citing to ECF No. 34 at ¶9)) Moreover, some of the exhibits come from the EEOC file which Plaintiff had previously listed as an exhibit. Plaintiff counters that “Defendant should not be allowed to withhold discovery documents in their possession delaying the discovery process...and then be permitted to exclude the documents the opposing party obtained by other means.” (ECF No. 67 at 5) Plaintiff indicates that “all the documents and exhibits were in [Defendant's] possession” but were not produced by them. Id. Defendant disputes Plaintiff's assertions. Plaintiff's Response to Defendant's Motion was not filed until June 12, 2020. At the time of her Response many of the changes in the scheduling of this case already had occurred. Thus, Plaintiff argued that the disclosure of these additional witnesses on March 4, 2020, is not unduly prejudicial. Further, Plaintiff goes through each witness listed and provides the context of Defendant's notice regarding each of these individuals and/or how Plaintiff became aware of those witnesses and/or the exhibits, at times through public records requests as opposed to receiving the information directly from Defendant. Defendant acknowledges that some of the information and exhibits referenced in its Motion were not directly provided to Plaintiff but rather received by Plaintiff through public records requests. For some of this information, Defendant offers reasons for the lack of information in its records. Nonetheless, whether or not this information should have been provided directly from Defendant or obtained through the public records requests, the undersigned finds that Plaintiff should not be precluded from calling the remaining witnesses, should it be determined that they have relevant information, or from attempting to introduce the exhibits at issue. Defendant argues that this Court's rulings on prior discovery motions found Plaintiff's prior discovery requests for some of the information at issue overbroad, unduly burdensome and not proportional to the needs of the case. Defendant then extrapolates that these rulings preclude Plaintiff from listing the information obtained from public records requests or other sources on her Exhibit List. This argument lacks merit. Simply because the Court finds that a specific request is overbroad, unduly burdensome or not proportional to the case does not mean that if rephrased the same request would not be proper. Further, a party may obtain that information from a different source. Whether or not it is admissible is a separate question. *4 In light of the foregoing, and the rescheduling of the jury trial in this case, the undersigned finds that Defendant is not prejudiced by Plaintiff's Supplemental Disclosures of the witnesses and exhibits referenced in its Motion. However, the undersigned will permit Defendant the opportunity to depose Roby Cedon and Gordon Weeks. The undersigned does not address Defendant's arguments made with regard to whether deponents will have relevant information or whether exhibits offered will be deemed relevant. Relevancy and other evidentiary determinations are more appropriately made at the time of trial. Having carefully considered the Motion, the Response and Reply thereto, the court file and applicable law, it is ORDERED AND ADJUDGED that Defendant's [Alternative] Motion to Exclude Witnesses and Exhibits (ECF No. 54) is GRANTED IN PART AND DENIED IN PART. Plaintiff presented no argument or opposition in her Response specifically addressing Burkes, Brandon, Morse, Fancee, Williams, Finny or Hollis. Accordingly, the Motion is GRANTED as to these seven witnesses and they are stricken from the witness list. Additionally, Defendant shall be permitted to take the depositions of Roby Cedon and Gordon Weeks at a mutually convenient date and time on or before August 12, 2020, or as otherwise agreed to by the parties. The Motion is DENIED as to Defendant's request to strike the remaining witnesses and its request to exclude the exhibits listed in Plaintiff's Exhibit List. DONE AND ORDERED at Fort Lauderdale, Florida this 5th day of August, 2020. Footnotes [1] Defendant indicates that it “does not recognize witnesses” Burkes, Brandon, Morse, Fancee, Williams and Finny as “being discussed in any documents throughout the course of discovery.” (ECF No. 54 at 3 n. 1) Plaintiff in its Supplemental Initial Disclosures identifies each of these people as “Present and/or Former Employee of Defendant; present address and telephone number unknown who may have knowledge of Plaintiff's employment/Plaintiff's allegations/Defendant's employment policies and practices, and detention facilities related to Plaintiff's allegations.” (ECF No. 54-1) Neither party references Bruce Hollis as a newly identified witness, but the Court notes that he appears to be the only possible fifteenth witness. In Plaintiff's Response, Plaintiff presents no argument or opposition with regard to these individuals therefore, the undersigned will grant the Motion to Strike these witnesses. [2] Owens and Seeber are listed as comparators. (Although this Court has subsequently found that Owen is not a proper comparator, ECF No. 61 at 10, the undersigned will not exclude him from the witness list at this time since the undersigned is not aware if he has other relevant testimony.) Waldon and Williams filed previous complaints against Assistant Secretary, Dixie Fosler. Wenhold and Gargett, who also filed complaints, were employed by Defendant in the same position as Plaintiff's supervisor, Negron. Cedon is the EEOC investigator. Weeks had involvement with the juvenile detention center and communications about Plaintiff.