Phillips et al v. M.I. Quality Lawn Maintenance, Inc. et al

Filing 152

ORDER REGARDING FURTHER CONSIDERATION OF PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE SOLORZANO PAYROLL DOCUMENTS. Signed by Magistrate Judge Andrea M. Simonton on 7/8/2012. (AMS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-20506-CIV-SEITZ/SIMONTON
CASE NO. 10-20698-CIV-SEITZ/SIMONTON
CASE NO. 10-20975-CIV-SEITZ/SIMONTON
EDEL LEON,
JAVIER GONZALEZ,
KELLY PHILLIPS,
LUISA GINSBERG, and
LUIS SOLORZANO,
Plaintiffs,
v.
M.I. QUALITY LAWN MAINTENANCE, INC.,
MITCHELL’S LAWN MAINTENANCE CORP., and
ADRIANA IGELKO, as guardian for
MITCHELL IGELKO,
Defendants.
/
ORDER REGARDING FURTHER CONSIDERATION OF PLAINTIFFS’
MOTION IN LIMINE TO EXCLUDE SOLORZANO PAYROLL DOCUMENTS
This matter is before the Court sua sponte. For the reasons stated below, the
undersigned has determined that the interests of justice require further argument
regarding the admissibility of the Solorzano payroll documents. At the conclusion of the
trial proceedings on Friday, July 6, 2012, the undersigned addressed the issue of
whether to exclude, based upon an alleged discovery violation, the paystubs and time
cards listed as exhibits by the Defendants. Based upon the oral argument presented,
and stating that no written response to the Motion in Limine to exclude those documents
had been filed with respect to either the original Motion in Limine to exclude the
documents (DE # 61) or the subsequently filed Motion in Limine (DE # 102), the
undersigned discussed the possible options regarding the documents–excluding the
documents and questions based on the documents, as requested by Plaintiffs’ counsel;

or, permitting questions regarding the documents and permitting the Defendants to seek
their admission if the documents were properly authenticated, and permitting Plaintiffs
to depose the corporate representative prior to her testimony at trial. The undersigned
stated that her inclination was to permit the Defendants to cross-examine Mr. Solorzano
regarding the hours he worked and the overtime paid, using details contained in those
records; and, to show him the records to refresh his recollection; but, to not permit
publication to the jury of the information contained in the documents, and to preclude
their admission into evidence based upon the discovery violation and the prejudice
resulting from the fact that Plaintiff Solorzano did not have the opportunity to depose the
corporate representative before the close of discovery.
After the conclusion of the proceedings on Friday, July 6, 2012, the undersigned
reviewed the complete record in this case and the relevant portions of the related cases,
and listened to the audio recording of the relevant portions of the initial pretrial
conference held on July 6, 2011, where the issue of these records was first raised. At
that hearing, counsel for the Defendants represented that there had been no discovery
violation since all of the payroll records had been produced for copying when Plaintiffs
made arrangements for copying, that this occurred at the end of the discovery period,
that Plaintiffs had never sought to take the deposition of the corporate representative
with respect to the records produced, and that there was no prejudice. Defendants’
counsel also represented that the existence of such records had been disclosed in the
initial disclosures. Co-counsel for the Plaintiffs (lead counsel was not present at the
pretrial conference) disputed this, stating that no initial disclosures had ever been made
in this case, and that the Solorzano records had not been produced until Defendants
filed their response to Plaintiff’s summary judgment motion. At that time, the

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undersigned stated that the dispute would not be resolved without further briefing.
Since the Motion in Limine had not been filed until the day of that pretrial conference,
the Defendants were permitted to file a written response to the Motion, and the Plaintiff
was permitted to reply. A written Order memorialized this ruling, stating that the issue
regarding the Solorzano payroll records would be resolved “after the parties have filed
their respective responsive pleadings.” (DE # 64).
Contrary to the statement of the undersigned during the proceedings on Friday,
July 6, 2012, a response in opposition to the original Motion in Limine was filed by the
Defendants on July 20, 2011 (DE # 66). This response reiterated the claims made orally
during the pretrial conference, and provided additional details, although it omitted the
claim that the records had been identified in the initial disclosures. The Defendants
pointed out that the discovery deadline was November 15, 2010, and that as of November
9, 2010, the Plaintiffs had not yet made arrangements to copy the available discovery
documents. Defense counsel also asserted that the Plaintiff made arrangements and
obtained production in late November and that all the documents at issue had been
produced at that time (DE # 66 at 4). Moreover, defense counsel stated that there had
been no written discovery requests seeking the production of any records with respect
to Plaintiff Solorzano (DE # 66 at 2). In addition, she noted that the documents had been
filed in connection with the Defendants’ summary judgment response, and that there had
been no claim of a discovery violation at that time, nor any motion to strike the
documents (DE # 66 at 4). Plaintiff Solorzano did not file any Reply to this Response.
The trial was continued based upon the medical condition of Defendant Igelko;
the related cases were consolidated for trial and new deadlines set for a consolidated
pretrial stipulation, motions in limine and pretrial conference; and, the original Motion in

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Limine was denied without prejudice (DE # 116).
Thereafter, Plaintiff Solorzano filed the pending Motion in Limine (DE # 134),
which is essentially the same as the previously filed motion. In a new footnote, however,
the Plaintiff notes that, at the last pretrial conference, the Court left open the possibility
that Defendants could supplement their initial disclosures, but that no supplement was
ever filed (DE # 134 at n.1). A review of the rule regarding supplementation reveals that,
even assuming that the challenged documents were not produced in November 2010, the
production which occurred on January 7, 2011, when the documents were filed in
connection with the Defendants’ Response in opposition to Plaintiff’s Motion for Partial
Summary Judgment (DE # 25), obviated the need for further supplementation. The duty
to supplement initial disclosures is governed by Fed. R. Civ. P. 26(e), which provides, in
pertinent part, “A party who has made a disclosure under Rule 26(a) . . . must
supplement or correct its disclosure . . . in a timely manner . . . if the additional or
corrective information has not otherwise been made known to the other parties during
the discovery process or in writing.” In this case, the additional information was made
known on January 7, 2011 (DE # 25). Therefore, no further supplementation was
required in order to comply with Rule 26(e). This determination, of course, does not
address the failure to include the documents as part of initial disclosures required to be
made prior to the close of discovery.
Moreover, it appears clear, upon further review and considering the Response in
opposition to the Motion in Limine, that there was no failure to respond to a discovery
request; that the discovery violation alleged is the failure to make initial disclosures. In
this regard, it is significant to note that there was no motion to compel initial
disclosures, and that even assuming that Plaintiff did not receive a copy of these

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documents prior to the close of discovery, they were received long in advance of the
trial. In this regard, the Scheduling Order entered by the District Judge then presiding
over the case, required that a party must seek relief regarding any discovery dispute
within 15 days from the date of occurrence of the grounds for relief (DE # 15, Att. A).
Pursuant to Fed. R. Civ. P. 26(a)(1)(C), initial disclosures are required to be made within
14 days after the parties’ Rule 26(f) conference, unless otherwise stipulated or ordered
by the Court.
Therefore, it appears appropriate to consider further argument before the
inclination of the undersigned to exclude the documents, as expressed at the conclusion
of the proceedings on Friday, July 6, 2012, is made a final order of the Court. Moreover,
since authenticity of the documents is at issue, if the documents are not excluded as a
discovery violation, it appears appropriate to permit the documents to be shown to
Plaintiff Solorzano during his cross-examination to determine whether he recognizes
them, or his writing is on them. In this regard, the Court notes that he acknowledged
writing his name on one of the documents shown to him on cross-examination, and
denied that his writing appeared on others.
The Court will hear argument regarding the scope of further cross-examination
prior to the time that Mr. Solorzano resumes his testimony. The ultimate decision on
admissibility of the documents cannot be made until they are offered by the Defendant;
however, the Court will hear further argument regarding the motion to exclude the

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documents based on the alleged failure to timely produce them as part of the initial
disclosures, on Monday, July 9, 2012.
DONE AND ORDERED in chambers in Miami, Florida, on July 8, 2012.

ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished via CM/ECF to:
All counsel of record

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