Adams v. The City of Montgomery

Filing 89

ORDER denying 83 Motion to Strike, as further set out in order. Signed by Chief Judge William Keith Watkins on 9/27/13. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIE ADAMS,
Plaintiff,
v.
CITY OF MONTGOMERY,
Defendant.

WILLIE ADAMS,
Plaintiff,
v.
CITY OF MONTGOMERY, et al.,
Defendants.

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CASE NO. 2:11-CV-1122-WKW
(LEAD CASE)
(WO)

CASE NO. 2:12-CV-523-WKW
(MEMBER CASE)
(WO)

ORDER
Before the court is Plaintiff Willie Adams’s Motion to Strike New
Testimony of Eva Anthony. (Doc. # 83.) Defendants have responded to the
motion. (Doc. # 88.)
Defendants submitted Ms. Anthony’s affidavit with their Reply Brief in
Support of their Motions for Summary Judgment. (See Docs. # 76, at 10; 76-3.) In
the Affidavit, Ms. Anthony attests that she is an Administrative Secretary for the
City Attorney’s Office, and that she opens, date stamps, and distributes incoming

mail. In the course of her duties, she received a relevant document in this case – an
EEOC Notice of Right to Sue letter, issued at Mr. Adams’s request, on September
30, 2011, and addressed to the City Attorney. Ms. Anthony declares that she
received the notice on behalf of the City Attorney’s Office and date stamped it on
October 5, 2011, at 10:15 a.m.
Before submitting Ms. Anthony’s affidavit, Defendants provided a copy of
the date-stamped notice along with their motion for summary judgment (Doc. # 354), but the date stamp on the copy in the record is not visible.

Defendants

produced the original for the court at the pretrial hearing, and the original date
stamp comports with what Defendants have represented to the court in their
summary judgment briefing.
In his motion to strike, Mr. Adams argues that the court should strike Ms.
Anthony’s affidavit because Defendants failed to (1) disclose Ms. Anthony as a
witness as required by Federal Rule of Civil Procedure 26(a)(1), or (2) supplement
their disclosures as required by Federal Rule of Civil Procedure 26(e)(1)(A). Mr.
Adams asserts that the non-disclosure prejudiced his ability to conduct discovery
and to rebut Defendants’ summary judgment arguments. Mr. Adams asks the court
to strike the affidavit, pursuant to Federal Rule of Civil Procedure 37(c)(1). See id.
(“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
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evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.”).
Defendants respond that the date stamped document to which Ms. Anthony
attests is itself admissible as a record of regularly conducted activity pursuant to
Federal Rule of Evidence 803(6).

Hence, Defendants contend that the date

stamped document is adequate, and it is not necessary that they call Ms. Anthony
as a witness as trial. Further, even if Defendants needed Ms. Anthony’s testimony,
they argue it would be solely for the purpose of authenticating the date stamped
document. Finally, Defendants point out that the court granted Mr. Adams the
opportunity to conduct additional discovery on this limited issue, which cures any
prejudice that could result from the late disclosure of Ms. Anthony’s testimony.
A few factors are relevant to a court’s decision to strike or allow testimony
from an undisclosed witness: (1) the importance of the testimony; (2) the reason
for the failure to disclose the witness sooner; and (3) the prejudice to the opposing
party if the witness is allowed to testify. Bearint ex rel. Bearint v. Dorell Juvenile
Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004). Ms. Anthony’s testimony is
important, but only because the letter she date-stamped is important.

Her

testimony shows that the “conditions” of Federal Rule of Evidence 803(6) are
satisfied. Defendants made Mr. Adams aware of the relevant document when it
filed its first motion for summary judgment on February 22, 2013, almost three
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months prior to the close of discovery. (See Doc. # 34, at 3 (citing Doc. # 35-4 and
stating that the City received the EEOC notice of right to sue letter on October 5,
2011).) When Mr. Adams filed his opposition brief six months later, he theorized
that Defendants received his letter on October 3, 2011, rather than October 5, 2011,
and chose to retaliate against him on the same day. (See Doc. #75, at 31–32.) His
argument made the existence of the City’s date stamped letter more significant to
Defendants’ defense, so they proffered Ms. Anthony’s affidavit as an exhibit to
their reply brief.
Because Mr. Adams had ample time to challenge the authenticity of
Defendants’ documented evidence, Defendants’ subsequent reliance on Ms.
Anthony’s affidavit in support of their long-disclosed documentary evidence is not
unfairly prejudicial to Mr. Adams. Accordingly, it is ORDERED that the motion
to strike (Doc. # 83) is DENIED.
DONE this 27th day of September, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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