United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E. DEGUILIO, District Judge.
Now before the Court is the Defendants' Motion to Strike Plaintiff's Supplemental Initial Disclosures. [DE 59]. For the following reasons, the Court grants the motion in part and denies it in part.
I. FACTUAL BACKGROUND
On July 13, 2011, while she was visiting her mother at her mother's apartment complex, Melissa Townsend was approached by a little girl who was screaming for help because someone was fighting the girl's mother. Ms. Townsend and several other people followed the girl and found two women, Yvette Howard and Lynette Faye Calligan, engaged in a physical altercation. Ms. Townsend pulled the women apart to stop the fight, and then returned to her mother's apartment. Several police officers then arrived at the scene, including Officer Ian Wolfe of the Fort Wayne Police Department. Officer Wolfe interviewed Ms. Howard and Ms. Calligan, each of whom wanted the other arrested, and learned that Ms. Townsend had witnessed the altercation. He therefore spoke with Ms. Townsend, at which time he asked for her identification. The parties disagree on the factual details of this exchange, but the end result was that Officer Wolfe arrested Ms. Townsend for failing to produce her identification. Officer Wolfe placed Ms. Townsend in handcuffs and led her out of the apartment complex. Ms. Townsend was detained for about eight hours before her release, and she claims that she was also banned from her mother's apartment complex due to the arrest.
Believing that she was wrongfully arrested, Ms. Townsend initiated this action by filing her complaint on September 19, 2012. After holding their planning meeting, the parties agreed that Rule 26(a)(1) initial disclosures would be due by December 20, and that all discovery would close on June 19, 2013. [DE 10]. The Court adopted those deadlines and made them orders of the Court, [DE 11], and discovery closed as planned on June 19, 2013. Following an unsuccessful settlement conference, the defendants moved for summary judgment on October 11, 2013. While that motion was still being briefed, Ms. Townsend served a supplemental Rule 26(a)(1) disclosure, identifying two maintenance men as potential witnesses of the altercation, and the Defendants moved to strike that disclosure as untimely. On June 16, 2014, the Court denied the motion for summary judgment in part, and also denied the motion to strike, finding that while the untimely disclosure was not justified, it was sufficiently harmless since no trial date had yet been set. During a scheduling conference on July 9, 2014, the Court set trial for February 2, 2015, and it also granted the Defendants' motion to reopen discovery for 60 days for the limited purpose of deposing the two late-disclosed witnesses.
Two weeks after that scheduling conference, on July 21, 2014, Ms. Townsend served another supplemental Rule 26(a)(1) disclosure. In this disclosure, Ms. Townsend identified six additional witnesses: Ms. Calligan and Ms. Howard, the combatants in the fight Ms. Townsend broke up; April Christman, an assistant manager of the apartment complex; Conrad Uberg, an attorney who provided Ms. Townsend legal services related to her ban from the apartment complex; and Belinda Smith-Wilson, a nurse practitioner, and Kurt Hoffman, a therapist, each of whom were expected to provide testimony as to the nature and extent of the treatment Ms. Townsend received as a result of her arrest. The supplemental disclosure also identified 14 additional documents or categories of documents. The Defendants have now moved to strike portions of this supplemental disclosure, and the motion has been fully briefed.
The Defendants seek to strike Ms. Townsend's supplemental disclosures on the basis that she failed to comply with Rule 26 of the Federal Rules of Civil Procedure. Under Rule 26(a)(1), a party must disclose, among other items,
(i) 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; [and]
(ii) a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment[.]
Fed. R. Civ. P. 26(a)(1)(A). A party must also supplement these 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." Fed.R.Civ.P. 26(e)(1). These obligations are enforced by Rule 37(c), which states,
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)(1). "The exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless." Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004).
In opposing the motion to strike, Ms. Townsend does not argue that her disclosures complied with Rule 26-her disclosure of these witnesses and documents over a year and a half after the deadline for initial disclosures and well over a year after the close of all discovery was clearly untimely. Thus, Rule 37 prohibits her from using that evidence "unless the failure was substantially justified or harmless." Id. Ms. Townsend does not offer any justification for her failure to comply with Rule 26, either, so the question is only whether the failure was harmless. The Seventh Circuit has articulated several factors that a court should consider in deciding whether such non-disclosures are harmless, including: "(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the ...