Center for Individual Rights v. Chevaldina

Filing 110

ORDER granting in part and denying in part 101 Plaintiff's Motion to Preclude Evidence. Signed by Magistrate Judge Edwin G. Torres on 1/29/2018. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-Civ-20905-KING/TORRES
CENTER FOR INDIVIDUAL RIGHTS,
Plaintiff,
v.
IRINA CHEVALDINA,
Defendant.
______________________________________/
ORDER ON PLAINTIFF’S MOTION TO PRECLUDE EVIDENCE
This matter is before the Court on the Center for Individual Rights’
(“Plaintiff”) motion to preclude evidence against Irina Chevaldina (“Chevaldina” or
“Defendant”). [D.E 101]. Chevaldina responded to Plaintiff’s motion on January 17,
2018 [D.E. 106] to which Plaintiff replied on January 25, 2018.

[D.E. 109].

Therefore, Plaintiff’s motion is ripe for disposition. After careful consideration of
the motion, response, reply, relevant authority, and for the reasons discussed below,
Plaintiff’s motion is GRANTED in part and DENIED in part.
I.

ANALYSIS

Plaintiff’s motion seeks an order (1) precluding Chevaldina from submitting
any evidence of harm suffered from Plaintiff’s alleged violations of the Driver’s
Privacy Protection Act (“DPPA”), (2) precluding Chevaldina from submitting any
evidence of damages that she incurred on any of her claims or calling any witnesses

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or submitting any evidence not previously identified, and (3) ordering Chevaldina to
pay Plaintiff’s reasonable expenses, including Plaintiff’s attorneys’ fees.
Plaintiff argues that – despite the Court’s prior Order [D.E. 91] compelling
Chevaldina to provide an amended response to interrogatory 3 – Chevaldina
continues to engage in gamesmanship in response to whether she suffered any
injury as a result of Plaintiff’s alleged violation of the DPPA. Chevaldina’s first
effort at supplementing her response was on December 12, 2017 where she alleged
that Plaintiff had failed to define the term “other injury.” Because that term was
vague, Chevaldina relied on a definition of “injury” through an online dictionary
that encompassed physical harms such as bruises and cuts. Using that definition,
Chevaldina stated that has suffered no injuries as a result of Plaintiff’s violations.
We agree that Chevaldina’s supplemental response is defective.

In the

Court’s prior Order, we found that the definition provided by Mr. Rosman
eliminated any remaining ambiguity on the meaning of the term “other injury.”
Chevaldina, instead, relies on inapposite definitions from online dictionaries in her
response to Plaintiff’s interrogatory.

Chevaldina’s supplemental response is

tantamount to bad faith because – even after the Court’s prior Order – Mr. Rosman
carefully explained the meaning of “other injury” in his conferral emails before
filing Plaintiff’s motion to preclude evidence.
In the interests of justice, we will allow Chevaldina to amend her response
one final time to make clear her injuries, if any, of Plaintiff’s alleged violations of
the DPPA. Chevaldina must identify all conceivable harms that she has suffered as
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a result of her allegations, including economic, physical, and any non-physical
injuries. If Chevaldina does not set forth an adequate response to interrogatory 3,
Rule 37 sanctions may be imposed. To this extent, Plaintiff’s motion is GRANTED.
As for the remaining relief sought, Plaintiff’s motion is DENIED.
As for Plaintiff’s second argument – that Chevaldina should be precluded
from submitting any evidence of damages that she incurred on any of her claims or
calling any witnesses or submitting any evidence not previously identified –
Plaintiff’s motion is unpersuasive.

Plaintiff contends that Chevaldina failed to

supplement her initial disclosures, despite the fact that she is now asserting three
separate

counts

in

her

amended

counterclaim.

Plaintiff

suggests

that

supplementing initial disclosures is required under Rule 26(e)(1)(A) and that a
failure to do so should result in sanctions under Rule 37.
We agree that supplemental disclosures are required under Rule 26. As part
of a party’s initial disclosures, a party must provide “a computation of each category
of damages claimed by the disclosing party.” Fed. R. Civ. P. 26(a)(1)(A)(iii).

A

party must then supplement or correct the 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)(A).

If a party fails to timely supplement its disclosures, as

required by Rule 26(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
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substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

A court, “[i]n

addition to or instead of this sanction,” may order “payment of the reasonable
expenses, including attorney's fees, caused by the failure,” “may inform the jury of
the party's failure,” or “may impose other appropriate sanctions, including any of
the orders listed in Rule 37(b)(2)(A)(i)-(vi).”

Fed. R. Civ. P. 37(c)(1). The “party

who is alleged to have failed to comply with Rule 26 bears the burden to show that
its actions were substantially justified or harmless.” Parrish v. Freightliner, LLC,
471 F. Supp. 2d 1262, 1268 (M.D. Fla. 2006). Courts consider “the non-disclosing
party’s explanation for its failure to disclose, the importance of the information, and
any prejudice to the opposing party if the information had been admitted.” Lips v.
City of Hollywood, 350 F. App’x 328, 340 (11th Cir. 2009).
Plaintiff’s motion is premature because Chevaldina’s first amended complaint
was just filed on November 28, 2017 [D.E. 90] and Plaintiff’s motion to preclude
evidence was filed approximately four weeks later. While Chevaldina admits that
she has not supplemented her initial disclosures, it is not clear that she refuses to
do so. Moreover, Chevaldina explains that she has had little time to supplement
her initial disclosures because of the holiday season and the need to respond to
Plaintiff’s other related filings in this case.
In sum, Plaintiff’s motion is DENIED because (1) there has not been a
substantial delay in Chevaldina supplementing her initial disclosures, (2)
Chevaldina is willing to comply with the Federal Rules, and (3) Chevaldina’s
explanation for failing to supplement is substantially justified.
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II.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion to preclude evidence is GRANTED in part and DENIED in
part.

[D.E. 101].

Chevaldina shall provide a supplemental response to

interrogatory 3 within ten (10) days from the date of this Order. To this extent,
Plaintiff’s motion is GRANTED.

As for the remaining relief sought, Plaintiff’s

motion is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of
January, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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