United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, Chief District Judge.
This matter comes before the Court on defendant Huffman Construction, Inc.'s Motion in Limine Concerning Text Messages (doc. 89). The Motion has been briefed and is now ripe.
This action for breach of contract, unjust enrichment, conversion, and the like arises from a commercial dispute between plaintiff, Northstar Marine, Inc., and defendant Huffman Construction, Inc. Northstar maintains that it recommended and facilitated Huffman Construction's selection as a direct contractor for National Recovery Corporation ("NRC") in the BP oil spill cleanup in June 2010, in exchange for Huffman Construction's promise to pay Northstar a finder's fee of 10% of its gross receipts from NRC. Huffman Construction counters that Northstar's account is pure fiction, and that no such promises were ever made. This action is set for non-jury trial to commence on November 19, 2014.
Defendant's Motion in Limine relates to a package of 29 photographs of text messages on a cell phone display screen that Northstar produced to Huffman Construction on October 18, 2014, barely a month before trial and well after the formal discovery cutoff date of June 30, 2014. In its Motion in Limine, Huffman Construction objects that it was prejudiced because the cell phone belongs to plaintiff's witness Warren Claybar, whom Huffman Construction had deposed way back in January 2014. As Huffman Construction puts it, Northstar "should have produced [the text messages] at or before the Claybar deposition in January, 2014, when [Huffman Construction] counsel would have had the opportunity to examine Mr. Claybar about them." (Doc. 89, at 2.) Huffman Construction further objects that Claybar made no mention of these text messages during his January 2014 deposition. In response, Northstar counters that the subject cell phone actually belongs to plaintiff's witness Rian Glasscock, whose deposition was never taken by Huffman Construction until November 2014 (by informal agreement of the parties), well after the discovery deadline and after production of the 29 photographs.
In its Reply, Huffman Construction shifts gears on the theory animating its Motion in Limine. Whereas the original Motion was couched in terms of prejudice because defendant deposed Claybar without the benefit of those text messages, the Reply simply faults Northstar's counsel for not producing the text messages earlier and offers a generic observation that "[d]efendant has been deprived of whatever useful information (if any) is contained in these texts since January." (Doc. 93, at 2.) Nowhere does Huffman Construction explain what it would have done with those text messages had they been produced earlier or how their untimely production has been to Huffman Construction's detriment. In a Surreply (doc. 94), Northstar points out that defendant took the deposition of Glasscock (the owner of the phone) last week, during which time he was questioned about those text messages. Essentially, then, Northstar posits that the Motion should be denied on a "no harm, no foul" rationale.
Although neither side's briefs recite the governing legal standard, the Motion in Limine is properly evaluated under Rule 37(c)(1), Fed.R.Civ.P. That rule provides, in relevant part, as follows: "If a party fails to provide information... as required by Rule 26(a) or (e), the party is not allowed to use that information... at a trial, unless the failure was substantially justified or is harmless. " Rule 37(c)(1) (emphasis added). "The burden of establishing that a failure to disclose was substantially justified or harmless rests with the nondisclosing party." Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir. Mar. 9, 2009) (citation omitted). Northstar unquestionably possessed and should have produced the cell phone/text messages to Huffman Construction back in January. While that omission appears to have been unintentional or the product of confusion resulting from the eleventh-hour cancellation of Glasscock's original deposition setting, thereby refuting any inference of bad faith on Northstar's part, these circumstances do not constitute substantial justification. Accordingly, the Motion in Limine turns on an analysis of whether the untimely production was harmless for purposes of Rule 37(c)(1).
Northstar has made a substantial showing of harmlessness with regard to the challenged text messages. After all, Huffman Construction received those materials a month before trial (such that defendant has had sufficient time to tailor its trial strategy and trial presentation to account for same). Moreover, Huffman Construction had a full and fair opportunity to depose the owner of the cell phone from which the messages were drawn (Glasscock) after the production occurred, and presumably was able to ask Glasscock anything it wanted to know about those text messages. There is no indication in the record - and certainly, Huffman Construction has never suggested - that defendant could or would have proceeded any differently had the text messages been produced in January 2014 rather than October 2014.
Simply put, no perceptible prejudice or unfair surprise accrued to Huffman Construction by virtue of Northstar's untimely production of the Glasscock phone and text messages. Huffman Construction was able to depose Glasscock fully about those materials, and there is no indication and no reason to believe that Huffman Construction's trial preparations were compromised or impaired by the belated disclosure.
For all of the foregoing reasons, it is ordered as follows:
1. Plaintiff's Motion for Leave to File Surreply (doc. 94) is granted, and the Surreply appended to that Motion as Exhibit A is considered in evaluating defendant's Motion in Limine; and
2. Defendant's Motion in Limine Concerning Text Messages (doc. 89) is denied because the untimely production of information concerning the subject text messages retrieved from Rian Glasscock's cell phone was harmless, such that ...