BEYOND CAPITAL FINANCIAL MANAGEMENT GROUP, INC., ET AL PLAINTIFFS v. BYLINE BANK, ET AL DEFENDANTS CIVIL ACTION NO. 3:20-CV-402-HTW-LGI United States District Court, S.D. Mississippi, Northern Division Filed November 29, 2022 Isaac, LaKeysha G., United States Magistrate Judge ORDER *1 Before the Court is the Plaintiffs' Objection to Production and Motion to Strike [77], filed by Plaintiffs Beyond Capital Financial Management Group, Inc. and Kenneth Watts, Jr. (“Plaintiffs”). Defendant Byline Bank (“Defendant”) filed a Response in Opposition [88], and Plaintiffs filed a Rebuttal to Defendant's Response [102]. The Court, having considered the submissions, the record, and relevant law, finds that the Plaintiff's Objection to Production and Motion to Strike [77] is GRANTED in part as discussed below. ANALYSIS Plaintiffs seek to strike the document production made by the Defendant on August 30, 2022. Plaintiffs specifically object to the “sizing and timing” of the document production made by the Defendant just one (1) day before the motion deadline of August 31, 2022. See Doc. [7] at 2.[1] Plaintiffs assert it conducted depositions on July 26, 27, and 28, 2022. Id. After the deposition of Plaintiff Kenneth Watts, Jr. was conducted on July 28, 2022, Plaintiffs made an additional request for production to Defendant on July 29, 2022, wherein Plaintiffs requested the alleged Promissory Note identified during the deponent's testimony. Id. Plaintiffs submit that on August 30, 2022, the Defendant produced 1,516 pages of documents in a supplemental response to the request for production, which included multiple copies of an unsigned Promissory Note. Id. “Plaintiffs object to the fact so many documents were produced at such a late hour and one day before the Motions deadline and submit it is an abuse of discovery.” See Doc. [78] at 2. Plaintiffs also argue the 1,516 pages of documents were likely in Defendant's possession prior to the discovery deadline, and the documents should have been produced with the Defendant's earlier production. Id. As such, Plaintiffs assert the late production constitutes unfair surprise, and therefore the documents should be stricken from use at the trial in this matter. Id at 4-5. Defendants oppose Plaintiffs' Motion to Strike [77] and argue that the Plaintiffs' propounded a last-minute request for production of documents on July 29, 2022, which was just a few days before the discovery deadline on August 3, 2022. See Doc. [88] at 1; [89] at 2. Defendant asserts it made a good faith effort to locate any responsive documents by conducting an internal search of its records. See Doc. [89] at 2. Defendant contends the Plaintiffs' motion should be denied, because the documents Defendant produced on August 30, 2022, were mostly documents already in the possession of or known to the Plaintiffs, and the documents were – at least in part – in response to the Plaintiffs' “tardy document request.” Id. Plaintiffs argue “even if the August 30 Production was not made known to the Plaintiffs during the discovery process, the August 30 production should not be excluded[,] as any discovery violation was harmless.” Id. at 3. Defendant further argues it should be allowed to use the email communications that were included in the production, as the Plaintiffs knew about the emails. Id. at 4. Therefore, the Defendant argues Plaintiffs cannot claim surprise. Id. Defendant further argues the supplemental documents were produced 140 days before the scheduled trial date, which gives the Plaintiffs ample time to review the documents before the trial. Id. *2 In their Rebuttal [102], Plaintiffs contend the Defendant has provided no justification for its failure to timely produce the supplemental documents. See Doc. [102] at 1. Plaintiffs argue they only requested one document – the Promissory Note, yet Defendant produced over 1,500 additional pages of documents. Plaintiffs assert they served their first requests for production on the Defendants on March 30, 2022. Id. Plaintiffs contend their initial requests for production included six requests that sought documents that were ultimately produced by Defendant on August 30, 2022. See Doc. [103] at 2. Plaintiffs also deny that they were already in possession of most of the documents produced by Defendant. Id. Plaintiffs assert they did not have access to the records, and the late production did not afford enough time for thorough review of the documents. Id. Further, Plaintiffs argue “that a responding party is required to produce documents in its possession, custody or control regardless of whether the requesting party is already in possession of the requested documents.” Id. at 3. Plaintiffs argue producing over 1,500 pages of documents one day before the motion deadline serves as unfair surprise and is prejudicial to Plaintiffs. Id. at 2. Thus, Plaintiffs move this Court to strike the documents and prohibit the Defendant from introducing any of the subject documents at trial. Id. at 4-5. “Federal Rule of Civil Procedure 26 governs parties' obligations to disclose and supplement all documents used to support claims and defenses as well as all discovery requests as new information is learned.” Jordan v. Greater Columbus Learning Ctr., No. 1:19-CV-160-GHD-DAS, 2020 WL 6051259, at *1 (N.D. Miss. Oct. 13, 2020).” (quoting Fed. R. Civ. P. 26(e)(1)(A) and L.U.Civ.R. 26(a)(5)). Rule 26 provides: “[A] party must, without awaiting a discovery request, provide to the other parties ... a copy ... of all documents ... that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses....’ ” Ishee v. Fed. Nat'l Mortg. Ass'n, No. 2:13-CV-234-KS-MTP, 2014 WL 12638500, at *1 (S.D. Miss. Dec. 2, 2014) (quoting Fed. R. Civ. P. 26(a)(1)(A)(ii)) (emphasis added). Moreover, “a party who has made a disclosure ... or who has responded to an interrogatory, [or] request for production ... must supplement or correct its disclosure or response ... 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....” Id. (quoting Fed. R. Civ. P. 26(e)(1)(A)) (emphasis added). Further, Rule 37 provides, “if 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). “In evaluating whether a violation of Rule 26 is harmless, the court considers four factors: (1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's failure to disclose. Id. at *2. (citation omitted). “According to the Advisory Committee Note to Rule 37, this 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,’ by the deadline. The purpose of these disclosure requirements is to ‘eliminate unfair surprise to the opposing party.’ ” Jordan, No. 1:19-CV-160-GHD-DAS, 2020 WL 6051259, at *2. The Court considers the four factors to determine if Defendant's late supplement was substantially justified or harmless. (1) Defendant makes no specific argument regarding the importance of the 1,516 pages it produced on August 30, 2022. (2) As to prejudice, Plaintiffs argue producing over 1,500 pages of documents one day before the motion deadline constitutes unfair surprise and is prejudicial to Plaintiffs. Defendant contends the documents should not be excluded, because Plaintiffs knew about most of the documents, including certain email communications that Defendant produced in its supplemental document production. *3 (3) While Defendant does not seek a continuance or extension of time to cure the late production of documents, Defendant does submit that it produced the documents in ample time for the Plaintiffs to review the documents and prepare for trial. Plaintiffs argue the documents were likely in Defendant's possession prior to the discovery deadline, and the documents should have been produced with the Defendant's earlier production, before the discovery deadline. (4) Plaintiffs argue the Defendant offers no explanation for its failure to timely supplement its discovery responses. Plaintiffs further argue they requested one document after the deponent identified the Promissory Note, but the Defendant abused the discovery process by supplementing its responses with additional documents. Defendant contends the Plaintiffs made a “tardy” request for documents, which prompted its “good faith” attempt to locate the requested documents, resulting in its production of all responsive documents. CONCLUSION The Court finds that the factors weigh in favor of excluding the untimely production. The Court finds Defendant has not provided any explanation for its failure to timely produce the supplemental documentation prior to the discovery deadline of August 3, 2022. The Court disagrees with Defendant's argument that its failure to timely produce the supplemental documentation is harmless. The Court finds the Defendant had an obligation to timely produce or supplement its discovery responses, in accordance with Rule 26, without awaiting a discovery request from Plaintiffs. Here, Defendant submits it conducted an internal search of its records and located documents responsive to Plaintiffs' requests for production. Notably, Plaintiffs served their initial requests on March 30, 2022, which was more than five months before the discovery deadline in this case. See Doc. [40], Notice of Service of Requests for Production to Byline Bank. This indicates the documents produced, after the discovery deadline, were likely accessible during the discovery period. Whether the Plaintiffs had knowledge of some or all of the documents is inconsequential, as Defendant's failure to timely produce documents in its possession prejudiced the Plaintiffs. Based on the foregoing, it would be well within the Court's discretion to exclude all 1,516 pages from consideration. However, this Court notes that the Plaintiffs specifically requested a copy of the Promissory Note, approximately one day after learning of the alleged document's existence. While the Court agrees the request was made just prior to the discovery deadline, the Court is satisfied that Plaintiffs request was justified, as it was limited to newly developed evidence only. Thus, the Court grants Plaintiffs' motion to strike [77] Defendant's untimely production of documents, with the exception of documentation responsive to Plaintiffs' request for production of documentation of the Promissory Note, whether signed or not. The remaining pages from the 1,516 document production shall be excluded. IT IS HEREBY ORDERED that Plaintiffs' Objection to Production and Motion to Strike [77] is GRANTED in part. IT IS FURTHER ORDERED that the Defendant's supplemental document production of 1,516 pages is hereby excluded, with the exception of the subject Promissory Note, in accordance with this order. SO ORDERED, this the 29th day of November, 2022. Footnotes [1] On July 7, 2022, the Court entered a Text-only Order granting the parties' Second Joint Motion to Extend Deadlines [57], which extended the discovery deadline to August 3, 2022. On August 2, 2022, the Court entered a Text-only Order granting the parties' Joint Motion to Extend the Motions Deadline and to Reschedule Settlement Conference [69], which extended the motion deadline to August 31, 2022.