Doers v. Lincare Holdings Inc.

Filing 67

ORDER denying 65 Defendant's Motion in Limine to Exclude Incomplete Text Message Exchange. Signed by Judge James S. Moody, Jr on 5/2/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MICHELLE DOERS,
Plaintiff,
v.

Case No. 8:14-cv-3168-T-30AEP

LINCARE, INC. d/b/a
PEDIATRIC SPECIALISTS,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant’s Motion in Limine to Exclude
Incomplete Text Message Exchange (Dkt. 65). The Court, upon review of the motion, and
being otherwise advised in the premises, concludes that the motion should be denied.
On April 29, 2016, Defendant filed the instant motion to exclude what it contends is
an “incomplete” text message exchange between Plaintiff and Jennifer Maze, Plaintiff’s
former supervisor. The text message, which this Court discussed in its order on Defendant’s
motion for summary judgment, is dated March 11, 2010, and states the following from Maze
to Plaintiff: “Did u get the travel itinerary I sent to your phone? U will not have to pay xtra
for your dog as long as u take the papers to the airport. I also faxed a copy to the office.
Thnk for being a team player.” Defendant argues that the text is incomplete because Plaintiff
deleted other texts between herself and Maze that were also sent on March 11, 2010.

Defendant insinuates that Plaintiff deleted these other texts in bad faith. Defendant’s motion
is denied as untimely. However, it is also denied on the merits.
On March 4, 2016, the Court entered an order that stated that the parties’ motions in
limine “shall be filed no later than March 22, 2016.” Defendant filed a motion in limine on
March 22, 2016. The motion did not address the subject text.
On March 29, 2016, the parties filed their joint pre-trial statement. Under the category
related to “all motions or other matters which require action by the court,” there is no
reference to any outstanding discovery or discovery disputes related to text messages or
outstanding phone records.
On April 4, 2016, Defendant filed its objections to Plaintiff’s trial exhibits. Defendant
did not object to the subject text, which was listed as exhibit 12 on Plaintiff’s exhibit list.
On April 5, 2016, the Court conducted the pre-trial conference. Defendant did not
discuss any issues or concerns related to the production of text messages or phone records.
Curiously, the instant motion, filed essentially on the eve of trial, does not address the
fact that it is untimely. But even if the motion had been timely, it would have been denied
on the merits because the motion does not explain in any fashion why Defendant did not
move to compel Plaintiff to produce any text messages that it believes were inappropriately
deleted during the discovery period. The motion also does not discuss why Defendant did
not move to compel the production of the phone records during the discovery period. Indeed,
the instant motion does not even attach Defendant’s request for production of these texts and
phone records, providing the Court with no context as to what exactly was requested and
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when the requests were served on Plaintiff. Defendant was clearly aware that Plaintiff would
rely on the subject text to prove her case because Plaintiff questioned Maze about the text
message during her November 20, 2015 deposition and also relied on the text message in
Plaintiff’s response to Defendant’s motion for summary judgment.
In sum, Defendant neglected to litigate any alleged neglect or failure on Plaintiff’s
part in the production of evidence related to text messages or phone records during the fact
discovery period.1 At this late stage, there is no basis to exclude the subject text. To the
extent Defendant believes that Plaintiff deleted other text messages in bad faith, Defendant
may question Plaintiff about this during the trial. On the current record, there is nothing to
support Defendant’s argument that spoliation of evidence occurred.
It is therefore ORDERED AND ADJUDGED that Defendant’s Motion in Limine
to Exclude Incomplete Text Message Exchange (Dkt. 65) is denied.
DONE and ORDERED in Tampa, Florida on May 2, 2016.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2014\14-cv-3168.MIL - 65 - deny.wpd

1

It is unclear whether anyone requested Maze’s text messages between herself and Plaintiff
during the relevant time.
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