United States of America et al v. Dish Network LLC

Filing 575

OPINION entered by Judge Sue E. Myerscough on 1/4/2016. Plaintiffs' Motion in Limine to Preclude Evidence Post-Dating the Close of Fact Discovery, d/e 526 is GRANTED IN PART and DENIED IN PART. (SEE WRITTEN ORDER). (MAS, ilcd)

E-FILED

Monday, 04 January, 2016 03:12:03 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
and the STATES OF CALIFORNIA,
ILLINOIS, NORTH CAROLINA,
and OHIO,
Plaintiffs,
v.
DISH NETWORK, L.L.C.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Plaintiffs’ Motion in Limine
to Preclude Evidence Post-Dating the Close of Fact Discovery (d/e
526). The Motion is GRANTED IN PART and DENIED IN PART.
Dish Network, L.L.C. (Dish) may use at trial the publicly available
consent judgments, complaints, and orders to demonstrate how the
government valued violations in other cases. Dish is precluded
from using at trial the scrubbing criteria documents. Dish’s failure
to timely produce the September and October audits and the
Compliance Documents was not substantially justified or harmless.
Page 1 of 39

As a sanction, the Court will reopen discovery on the issue of a
permanent injunction and require Dish to pay the reasonable
expenses, including attorney’s fees, incurred by Plaintiffs to conduct
that additional discovery. A separate hearing on the permanent
injunction will be held. Witnesses Matt Cagle and Steven Gniadek
may testify at the hearing on the permanent injunction. Witnesses
Steve Swain, Kevin Gelston, Josh Sitko, and Supriya Surender are
barred from testifying.
I. INTRODUTION
This case is currently set for trial in January 2016. One of the
forms of relief Plaintiffs have sought since the beginning of this case
in 2009 is a permanent injunction. See Compl. ¶ 97 (d/e 1); Third
Am. Compl. ¶ 98 (d/e 483); see also Prayer for Relief (seeking a
permanent injunction to prevent future violations of the
Telemarketing Sales Rule (TSR) and the Federal Trade Commission
Act (FTC Act)).
Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), authorizes the
Court to issue a permanent injunction in the proper case. The
Telephone Consumer Protection Act (TCPA) similarly authorizes the
Plaintiff States to seek injunctive relief to stop violations of the
Page 2 of 39

TCPA. 47 U.S.C. § 227(g). To prove a claim for a statutory
injunction, Plaintiffs must demonstrate a violation and “some
reasonable likelihood of future violations.” Commodity Futures
Trading Comm’n v. Hunt, 591 F.2d 1211, 1220 (7th Cir. 1979).
“While past misconduct does not lead necessarily to the conclusion
that there is a likelihood of future misconduct, it is ‘highly
suggestive of the likelihood of future violations.’” Hunt, 591 F.2d at
1220 (quoting S.E.C. v. Mgmt. Dynamics, Inc., 515 F.2d 801, 807
(2nd Cir. 1975)).
In September and October 2015, Dish produced to Plaintiffs
over 1,100 pages of documents not previously produced. Also in
September 2015, Dish identified in its witness list four witnesses
who had not previously been disclosed and two who had only been
disclosed in May 2015 on an earlier witness list.
Plaintiffs move to strike all of the documents and witnesses
not previously disclosed and to preclude Dish from generally
introducing at trial any evidence from the time period after June 30,
2012, when fact discovery ended. Plaintiffs assert this relief is
necessary because, from mid-2012 until recently, Dish took the
position that the relevant time period ended with the close of fact
Page 3 of 39

discovery. According to Plaintiffs, Dish refused to produce evidence
post-dating June 2012 and never updated its productions to reflect
post-June 2012 conduct.
II. BACKGROUND
After several extensions, this Court ultimately ordered that
fact discovery would close on May 25, 2012, with an extension to
June 30, 2012 for limited purposes. See May 23, 2012 Text Order.
Plaintiffs treat June 30, 2012 as the date discovery closed.1
Dish made its initial Rule 26 disclosures on March 23, 2010,
and updated those disclosures on May 25, 2012 and April 30, 2013.
See Pls. Motion, Attachments A-C (d/e 526-1, 526-2, 526-3). In the
April 2013 supplement, Dish asserted:
DISH Network believes that most, if not all, documents
pertinent to its defenses, with the exception of call record
analysis refuting Plaintiffs’ claimed violations, have been
produced or made available to Plaintiffs for review. DISH
Network will make a further production of any additional,
non-privileged documents if requested by Plaintiffs in the
normal course of this litigation.

1

In March 2013, after the Court granted Plaintiffs leave to file a new Count II
(alleging Dish engaged in or caused other telemarketers to engage in initiating
outbound telephone calls to persons on the internal do-not-call list), the Court
extended discovery on Count II to September 16, 2013. See Consent Proposed
Case Schedule (d/e 259); March 21, 2013 Text Order. That extension does not
apply here.

Page 4 of 39

See Pls. Mot., Attachment C at 3 (d/e 526-3).
On July 8, 2013, Plaintiffs sent a letter to Dish reminding Dish
of its obligation to update and supplement its discovery responses
pursuant to Federal Rule of Civil Procedure 26. Pls. Mot.,
Attachment D (d/e 526-4). The parties met on July 30, 2013 to
confer about this and other discovery issues.
During that conference, which Plaintiffs had transcribed,
counsel for Dish denied that Dish had a duty to supplement once
discovery closed. Pls. Mot., Declaration of Grace Garner (d/e 5265), Ex. 1, Tr. at 139 (d/e 526-5). Counsel for Dish asserted that
Dish had a duty to correct prior incorrect information but that Dish
had no duty to supplement with documents or information created
after the close of discovery in May 2012. Id. Because Dish had not
produced any call records after March 2010, counsel for Plaintiffs
asked Dish to stipulate that Dish would not argue that injunctive
relief was inappropriate because Plaintiffs had not proved any
violative calls after March 2010. See Id. at 141, 145, 150-51. After
initially refusing to stipulate, Dish’s counsel ultimately stated:
I think we can reach—again, our desire to put down in a
stipulation kind of like what both parties have agreed to
here—it does not have to be signed off but a letter
Page 5 of 39

agreement understanding—what we will produce and
what we can and can’t argue at the trial with respect to
the information that has been produced.
Id. at 151. No stipulation was ever entered. However, on
September 27, 2013, Dish sent Plaintiffs an “updated TCPA tracker”
(consumer complaints about telemarketing) pursuant to the parties’
agreement on July 30, 2013. See Dish Resp., Letter, Ex. L (d/e
553-13) (but also stating that most of the entries were not related to
or in response to a telemarketing campaign by Dish). Dish also
asserts that it provided an updated do-not-call list. Dish Resp. at
9.
On December 11, 2014, this Court granted in part and denied
in part the parties’ cross-motions for summary judgment. See
Opinion 445. On April 1, 2015, this Court set the matter for trial
on July 21, 2015, and ordered the parties to file a proposed final
pretrial order by May 15, 2015. On May 8, 2015, Dish sent
Plaintiffs a proposed Findings of Fact (in preparation of the final
pretrial order) asserting several facts relating to Dish’s current
compliance with telemarketing law, the decrease in telemarketingrelated complaints, and the bolstering of Dish’s written procedures.
See Dish Resp., Elyse D. Echtman Aff. ¶ 15 (d/e 553-1), Ex. M (d/e
Page 6 of 39

553-14). Also in May 2015, Dish sent Plaintiffs a witness list
containing, as is relevant herein, two new witnesses who had not
been identified on any of Dish’s Rule 26 disclosures: Dish
employees Kevin Gelston and Steve Swain. Dish Resp., Ex. N (d/e
553-15). Dish did not indicate the subject of their testimony or
their job titles.
On May 13, 2015, the Court reopened discovery on a limited
issue, not relevant to the issues herein, and continued the trial to
October 6, 2015. Opinion (d/e 499). The Court ordered the parties
to prepare a proposed final pretrial order by September 1, 2015.
On June 29, 2015, after Dish filed an additional motion, the Court
moved the trial to January 5, 2016 and ordered the parties to file a
proposed final pretrial order by November 2, 2015. See June 29,
2015 Text Order.
On September 25, 2015, Dish sent a list of trial witnesses to
Plaintiffs which included the two new witnesses identified on the
May 2015 witness list, Gelston and Swain, as well as four new
individuals Dish had not previously listed on any of Dish’s Rule 26

Page 7 of 39

disclosures2: Matt Cagle, Steven Gniadek, Josh Sitko, and Supriya
Surender. Pls. Mot., Declaration of Grace E. Garner (d/e 526-5),
Ex. 2. Cagle and Gniadek were identified as employees of
CompliancePoint (a subsidiary of PossibleNOW). The others were
identified as Dish employees. The subject of their testimony was
not identified on the witness list.
On September 30, 2015, Dish produced over 1,100 pages of
documents. On October 27, 2015, Dish produced another batch of
documents. The documents included the following, as described by
Dish:
(1) two audits of Dish’s recent outbound telemarking
campaigns, one analyzing calls between August 1, 2015
and September 19, 2015 (the September 2015 audit) and
one analyzing calls from September 20 through October
20, 2015 (the October audit).
(2) Dish’s new written policy entitled “DISH Outbound
Operations Policy—Summary of Processes and
Procedures,” created after the issuance of this Court’s
Plaintiffs originally challenged eight witnesses but Dish agreed to withdraw
two –Krystal Davidson and Men Wang—from its witness list. Dish Resp. at 13.
Therefore, the Court will limit its examination to the six witnesses.
2

Page 8 of 39

order on summary judgment. Dish intends to use the
manual as evidence of its current compliance efforts,
which Dish asserts is relevant to the Court’s analysis of
whether an injunction is appropriate.
(3) updated charts tracking the number of TCPA
complaints Dish received in recent years, up to 2015
(which the parties refer to as a “TCPA tracker”). During
discovery, Dish provided an earlier version of the same
document that recorded TCPA complaints up to 2011.
(4) Dish’s Do-Not-Call Policy, revised in April 2014, that
Dish asserts is largely consistent with Dish’s prior DoNot-Call Policies and is complemented by the new 2015
Outbound Operations document described above. Dish
asserts this document is relevant for determining
injunctive relief.
(5) Dish’s Do-Not-Call Escalations Form Workflow
Update, which was updated in February 2015. Dish uses
the “form to remove customer phone numbers from DISH
lists in escalated situations.” Dish Resp. at 6. Dish
asserts that the form provides the Court important
Page 9 of 39

information regarding Dish’s efforts to improve its do-notcall compliance.
(6) Dish’s current Standard Operating Procedures, which
provides detailed instructions to Dish Outbound
Operations employees for processing specific calling lists.
Dish asserts that the document is evidence of Dish’s
current practices, which is relevant to the injunction
analysis.
(7) publically available consent judgments, complaints,
and orders, which Dish claims are relevant to
demonstrate how the government valued violations in
other cases.
See Dish Resp. at 4-6 (d/e 553); see also Pls. Mot. at 5-6. Plaintiffs
also assert that Dish produced documents that appear to reflect
scrubbing criteria for various calling campaigns, but Dish does not
address these documents. Pls. Mot. at 6.
On October 15, 2015, Dish advised Plaintiffs that if they had
any questions about the documents, Dish was willing to make a
witness or witnesses available to testify pursuant to Rule 30(b)(6).

Page 10 of 39

Plaintiffs declined the offer. On November 2, 2015, Plaintiffs filed
the Motion at issue herein.
III. THE PARTIES’ POSITIONS
Plaintiffs seek to bar Dish from offering evidence, testimony, or
argument about the proposed Dish trial exhibits listed in Exhibit 3
to the Garner Declaration, as well as other new exhibits that Dish
has produced or may produce that relate to the post-June 2012
time period.3 Plaintiffs also request that the Court preclude the
testimony of Dish witnesses Matt Cagle, Kevin Gelston, Steve
Gniadek, Josh Sitko, Supriya Surender, and Steven Swain about
any information or events that occurred after the close of general
fact discovery in June 2012. Plaintiffs argue that the disclosures
are untimely, the document production was highly selective and did
not include all of the documents that would have been responsive to
Plaintiffs’ prior document requests, and mandatory exclusion is
warranted under Federal Rule of Civil Procedure 37.
According to Plaintiffs, Dish cannot fail to produce updated
discovery related to this case and then, on the eve of trial, produce
Plaintiffs do not concede the admissibility of the documents and expressly
challenged the admissibility of the documents in their objections to Dish’s
proposed trial exhibits.
3

Page 11 of 39

new information and identify new witnesses. Plaintiffs further
assert that the prejudice caused by the late disclosures and
productions cannot be cured. Even if Plaintiffs had time to obtain,
review, and analyze the full production (as opposed to the selective
production made by Dish), depose witnesses knowledgeable about
that information, and depose the newly identified witnesses,
Plaintiffs will suffer prejudice from the further delay of the trial.
Dish responds that Plaintiffs seek a sweeping mandatory
injunction but ignore the existence of current evidence that shows
that Dish’s telemarketing compliance continues to improve. Dish
states that its disclosures complied with the federal rules, Rule 37
does not bar the evidence or witnesses, and that, even if Rule 37
bars the evidence, the Court should exercise its discretion to permit
it.
Dish explains that it is unlikely to call all six witnesses at trial
but included them on its pretrial disclosure witness list to preserve
Dish’s ability to call them. Sitko and Surender will testify about
Dish’s outbound dialing operations. Cagle and Gniadek will testify
about the September and October 2015 audits. Gelston, Vice
President of Corporate Accounting, and Swain, Senior Vice
Page 12 of 39

President and Chief Financial Officer, will testify about Dish’s
current financial condition. Only Cagle and Gniadek will be called
to testify about current compliance efforts. Dish Resp. at 2.
IV. ANALYSIS
A.

Dish Had an Obligation to Supplement, and Dish’s Recent
Disclosures were Untimely
Dish asserts that it has fulfilled all of its discovery obligations

and had no duty to supplement with the recently produced
information.
Rule 26 of the Federal Rules of Civil Procedure requires a
party to disclose, without awaiting a discovery request, the name
and address of each individual likely to have discoverable
information that the disclosing party may use to support its claims
or defenses, unless the use would be solely for impeachment. Fed.
R. Civ. P. 26(a)(1)(A)(i). The disclosure must include the subject of
the information each individual is likely to have. Id. A party must
also provide “a copy—or a description by category and location—of
all documents” within the party’s possession, custody, or control
that the disclosing party may use to support its claims or defenses,

Page 13 of 39

unless the use would be solely for impeachment. Fed. R. Civ. P.
26(a)(1)(A) (ii).
Federal Rule of Civil Procedure 26(a)(3) requires, in addition to
the disclosures required by Rule 26(a)(1) and (a)(2) (disclosure of
expert testimony), that a party provide certain pretrial disclosures
about the evidence that it may present at trial other than for
impeachment. Fed. R. Civ. P. 26(a)(3)(A). This includes the name of
each witness the party expects to present and those it may call if
needed (i.e. a witness list) and the identification of each document
or other exhibit the party expects to offer and those it will offer if
the need arises (i.e. an exhibit list). Fed. R. Civ. P. 26(a)(3)(A)(i), (iii).
These disclosures must be made at least 30 days before trial,
unless the court orders otherwise. Fed. R. Civ. P. 26(a)(3)(B).
In addition, parties have an ongoing duty to supplement their
initial disclosures and discovery responses. Federal Rule of Civil
Procedure 26(e) provides:
(1) In General. A party who has made a disclosure under
Rule 26(a)--or who has responded to an interrogatory,
request for production, or request for admission--must
supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete
Page 14 of 39

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;
or
(B) as ordered by the court.
Fed. R. Civ. P. 26(e) (emphasis in original). One of the purposes of
Rule 26(e) is to “prevent surprise at trial.” Talbert v. City of Chi.,
236 F.R.D. 415, 421 (N.D. Ill. 2006); see also In re FedEx Ground
Package Sys., Inc. Emp’t Practices Litig., No. 3:05-MD-527 RM,
2007 WL 2128164, at * 3 (N.D. Ind. July 23, 2007) (“Long gone are
the days of litigation by ambush where key witnesses or critical
information is sprung on the opponent at the last moment, too late
to respond, counter[,] or learn the details of the information”).
Dish first argues that it complied with its duty under Rule
26(a) by disclosing that it would rely on “Telemarketing compliance
materials regarding internal Do Not Call list compliance, including
DISH Network’s ‘Do Not Call’ policies and their revisions.” Dish
Resp. at 7, citing Dish’s Rule 26 Second Supplemental Disclosures
(April 30, 2013) (d/e 526-3). 4 Dish suggests that the documents it
recently produced fall within this category of documents and,
Dish indicates it supplemented its Rule 26 disclosures in April 2013 even
though Dish believed it had no obligation to do so. Dish Resp. at 9.
4

Page 15 of 39

therefore, were properly disclosed in the Rule 26 Second
Supplemental Disclosures.
However, Dish also advised Plaintiffs in the Rule 26 Second
Supplemental Disclosures that “most, if not all, documents
pertinent to its defenses, with the exception of call record analysis
refuting Plaintiffs’ claimed violations, have been produced or made
available to Plaintiffs for review.” See d/e 526-3 at 3. The
documents Dish now seeks to admit as evidence had not been
produced or made available to Plaintiffs for review, and Dish did not
supplement its Rule 26(a) disclosure after April 2013 to provide
Dish with the new documents until shortly before trial (September
and October 2015). Therefore, Dish did not comply with Rule 26
by, in its Rule 26 Second Supplemental Disclosures, generally
describing the types of documents that Dish might use to support
its defenses.
Dish next argues that it complied with its duty to respond to
Plaintiffs’ discovery requests pursuant to Rule 34. According to
Dish, Plaintiffs’ Second Request for Production of Documents only
sought telemarketing compliance monitoring and enforcement
documents for the time period of October 1, 2003, to the date on
Page 16 of 39

which production was made. Def. Resp. at 7 (d/e 553) citing Pls.’
Second Request for Production of Documents to Dish Network, LLC,
¶ 5 (d/e 47-2). Dish contends that the duty to respond terminated
once Dish responded, unless Dish had a further duty to
supplement. Dish asserts it did not have a further duty to
supplement because there is no on-going duty to supplement
during the entire case. Resp. at 8, quoting Thompson v. Ret. Plan
for Emps. of S.C. Johnson & Sons, Inc. No. 07-CF-1047, 2010 WL
2735694, at *1 (E.D.Wis. July 12, 2010). Moreover, Plaintiffs did
not ask for additional supplementation, other than an updated copy
of Dish’s data recording consumers’ do-not-call complaints (TCPA
trackers), which Dish provided in September 2013.
The Court disagrees. Dish had a duty to supplement its
responses to Plaintiffs’ discovery. Although the Second Request for
Production sought documents from October 1, 2003 to the date
production was made, the Second Request for Production also
provided that:
These requests impose a continuing obligation, which
may extend up to and during the course of trial in this
case. Responsive documents that you obtain or discover
after your initial production must be produced promptly
Page 17 of 39

by supplemental production to the fullest extent provided
by law. See Fed. R. Civ. P. 26(e).
Pls.’ Second Request for Production of Documents to Dish Network,
LLC, ¶ 1 (d/e 47-2). As the discovery request recognized, Dish had
a duty to supplement pursuant to Federal Rule of Civil Procedure
26(e). See Fed. R. Civ. P. 26(e) (imposing a duty to supplement Rule
26(a) disclosures and discovery responses). Moreover, despite
Dish’s suggestion to the contrary, several cases have held that the
duty to supplement extends beyond the close of discovery. See,
e.g., Francis v. AIT Labs., No. 1:07-CV-0626, 2008 WL 2561222, at
* 1 (S.D. Ind. June 26, 2008) (holding that “[n]owhere in the Rule is
it stated or implied that the obligation to supplement ceases with
the passage of the discovery deadline”); Episcopo v. Gen. Motors
Corp., No. 02 C 8675, 2004 WL 628243, at * 7 (N.D. Ill. Mar. 29,
2004) (holding that “the language of Rule 26(e)(2) is broad enough
to require supplemental disclosures under certain circumstances,
regardless of whether discovery has closed, and is consistent with
the spirit behind the discovery rules, which is to promote a liberal
discovery process in an effort to narrow the issues for trial and to
prevent unfair surprise.”) (quotations and citations omitted), aff’d
Page 18 of 39

128 F. App’x 519 (2005) (affirming grant of summary judgment);
Marianjoy Rehab. Hosp. v. Williams Elecs. Games, Inc., No. 94 C
4918, 1996 WL 411395, at * 3 (N.D. Ill. July 19, 1996) (finding it
would “defeat the purpose of Rule 26(e) if the duty of
supplementation did not survive the close of discovery”).
Dish cites Thompson v. Retirement Plan for Employees of S.C.
Johnson & Sons, Inc., 2010 WL 2735694, at *1, for the proposition
that a general, on-going duty to supplement does not exist
throughout the entire life of the action. In Thompson, the class
plaintiffs in an ERISA action filed a motion to compel the
defendants to provide additional discovery. Although discovery had
closed, the plaintiffs argued that the defendants had an on-going
duty to supplement their earlier discovery responses by producing
documents generated since the close of discovery. Id.
The district court was “not convinced that additional discovery
[was] either necessary or appropriate.” Id. The court had issued
three months earlier a decision on cross-motions for summary
judgment and directed the defendants to recalculate the lump sum
distributions. As such, the court did not believe the requested
discovery had any relevance to the sole remaining issue.
Page 19 of 39

The court further expressed disagreement with the “view that
Rule 26(e)(1) automatically mandates the disclosure of all
documents falling under a request for production that were created
after the close of discovery.” Id. According to the Thompson court,
Rule 26(e) provides that “the duty to supplement is triggered when a
party later becomes aware of information or documents that
undermine the accuracy or completeness of its original discovery
responses.” Id. The court distinguished the cases finding a duty to
supplement after the close of discovery on the ground that
supplementation was only required under particular circumstances,
“such as when the use of the previously undisclosed discovery
unfairly disadvantages or surprises the opposing party.” Id.
Because the defendants there did not intend to use the subject
documents and because the court did not believe the documents
sought were relevant, the court refused to compel the defendants to
produce the additional discovery. Id.
Even applying the standard identified in Thompson, this Court
finds that supplementation was required because Dish intends to
use the evidence and the evidence is relevant. Moreover, the

Page 20 of 39

previously undisclosed evidence unfairly disadvantages and
surprises Plaintiffs.
Finally, to the extent Dish argues that Plaintiffs were required
to ask for supplemental documents, the Court disagrees. The duty
to supplement is automatic, and Plaintiffs were not obligated to
make supplemental discovery requests. See Gonzalez v. Rodgers,
No. 2:09-CV-225-JTM-PRC, 2011 WL 5040673, at *7 (N.D. Ind. Oct.
24, 2011) (finding that “Defendants are not obligated to provide
supplemental discovery requests to trigger [plaintiff’s] duty to
supplement”).
The Court also finds that Dish was required to supplement its
Rule 26(a) disclosures with the names of the additional individuals
likely to have discoverable information that Dish might use to
support its defenses. To the extent Dish argues that it was
sufficient to list the individuals on the pre-trial witness list, the
Court disagrees.
Federal Rule of Civil Procedure 26(a)(3) requires certain
pretrial disclosures at least 30 days before trial or as ordered by the
Court. This Court initially ordered that the parties submit the
proposed final pretrial order (which would include the witness list)
Page 21 of 39

on May 15, 2015. After the case was continued, the deadline was
set for September 1, 2015. Ultimately, the deadline for submitting
the proposed final pretrial order was November 2, 2015. Dish
disclosed Gelston and Swain to Plaintiffs on May 8, 2015 and the
remaining four witnesses on September 25, 2015.
Disclosing witnesses pursuant to Federal Rule 26(a)(3) does
not cure the failure to disclose the identity of individuals likely to
have discoverable information under Rule 26(a). See Mitchell v.
Iowa Interstate RR Ltd., No. 07-1351, 2010 WL 2089305, at * 2
(C.D. Ill. May 25, 2010) (finding that the failure to disclose
witnesses in the Rule 26(a)(1) disclosures was not cured by listing
them on the pretrial disclosures pursuant to Rule 26(a)(3) after the
close of discovery). Rule 26(a)(3) provides that, “in addition to” the
requirements of Rule 26(a),(1), a party must make pretrial
disclosures, which includes providing a list of any witness the party
intends to present at trial. A party cannot avoid the requirements
of Rule 26(a)(1) and Rule 26(e) by adding a name of a previously
undisclosed person to the party’s pretrial disclosure under Rule
26(a)(3). See Lujano v. Town of Cicero, No. 07 C 4822, 2011 WL
6822204, at *6 (N.D. Ill. Dec. 23, 2011) (barring affidavits of affiants
Page 22 of 39

who were not identified in the Rule 26 disclosures where the
plaintiff did not present any reason why the individuals were not
identified earlier, noting “she could not add names to her [Rule 26]
disclosures at trial without a timely supplementation pursuant to
Rule 26(e)”).
In sum, the Court finds that Dish had a duty to disclose the
recently disclosed evidence and witnesses and that the disclosures
at issue herein were untimely. Discovery closed in June 2012. The
Court ruled on summary judgment on December 11, 2014. This
case was originally set for trial on July 21, 2015, although this date
was subsequently extended to October 6, 2015 and then January 5,
2016. (The trial is currently set for January 19, 2016). Dish waited
until shortly before the trial scheduled in July 2015 to disclose
Gelston and Swain and waited until shortly before the January
2016 trial to disclose the remaining witnesses and the documents.
Such disclosures are untimely. See, e.g. Sys. Dev. Integration LLC
v. Computer Sciences Corp., No. 09-CV-4008, 2012 WL 2953063, at
*2 (N.D. Ill. July 19, 2012) (holding that Rule 26(e) does not allow a
party to wait more than two years after the close of discovery and
after the court rules on summary judgment to supplement its
Page 23 of 39

discovery responses and initial disclosures); Barlow v. Gen. Motors
Corp., 595 F. Supp. 2d 929, 935-36 (S.D. Ind. 2009) (noting that
“Rule 26(e) was intended to ensure prompt disclosure of new
information, not to allow parties to spring late surprises on their
opponents under the guise of a ‘supplement’ to earlier disclosures”).
B.

Sanctions Will Be Imposed for the Late Disclosures that
Were Neither Substantially Justified Nor Harmless
If a party fails to provide information or identify a witness as

required by Federal Rule of Civil Procedure 26(a) or 26(e), “the party
is not allowed to use that information or witness . . . at a trial,
unless the failure was substantially justified or is harmless.” Fed.
R. Civ. P. 37(c)(1). The exclusion of evidence is automatic unless
the party can show that its violation was justified or harmless.
Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998).
However, Rule 37(c) also provides that, “[i]n addition to or instead
of” the sanction of exclusion, “the court, on motion and after giving
an opportunity to be heard,” can impose other sanctions, including
ordering “payment of the reasonable expenses, including attorney’s
fees, caused by the failure” to disclose or supplement. Fed. R. Civ.
P. 37(c)(1)(A); McAtee v. Buca Rests., Inc., No. 1:10-cv-1090-SEBPage 24 of 39

DKL, 2011 WL 6016648, at *4 (S.D. Ind. Dec. 2, 2011) (finding the
defendant’s supplemental response untimely and requiring, as a
sanction, that the defendant pay the costs associated with the
plaintiff’s liability expert’s revision of the expert report based on the
new information). It is within this Court’s discretion whether the
Rule 26 violation was substantially justified or harmless. David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003).
When determining whether the late disclosure was
substantially justified, “the inquiry focuses upon the actual ability
to timely disclose or else upon whether the party had a legal basis
to argue that disclosure as not actually required.” Bull v. Bd. of
Trs. of Ball State Univ., No. 1:10-cv-00878-JMS-TAB, 2012 WL
76137, at *2 (S.D. Ind. Jan. 10, 2012). The relevant factors the
court considers to determine whether a violation is harmless
include “(1) the prejudice or surprise to the party against whom the
evidence is offered; (2) the ability of the party to cure the prejudice;
(3) the likelihood of disruption to the trial; and (4) the bad faith or
willfulness involved in not disclosing the evidence at an earlier
date.” David, 324 F.3d at 857.

Page 25 of 39

1.

Late Disclosure of the Audits and Compliance Documents
Was Not Substantially Justified or Harmless

Dish argues that it was substantially justified in only recently
disclosing the two audits because Dish produced them within one
week of their completion. Dish asserts that the audits evaluated all
of Dish’s outbound telemarketing campaigns during the relevant
time period and were conducted by a subsidiary of PossibleNOW.
Dish is not using the audits to demonstrate that its calling records
over the last five years were perfect but to demonstrate current
compliance so that the Court can determine whether future
violations are likely for purposes of deciding whether to enter a
permanent injunction.
Dish also argues that any potential discovery violation is
harmless because Dish produced the documents in good faith.
Dish asserts that it supplemented the record to give the Court and
Plaintiffs a full picture of Dish’s current compliance and asserts
that these documents will allow the trial to run smoothly. Finally,
Dish asserts that these documents are necessary given that
Plaintiffs are seeking a mandatory injunction that would have
devastating effects on Dish’s business.
Page 26 of 39

Plaintiffs argue that the late disclosures are inexcusable
because Dish led Plaintiffs to believe in 2013 that Dish had
produced everything it was going to produce, represented that it
had fulfilled its discovery obligations, and refused to update its
discovery productions going forward. Plaintiffs further argue that
the late disclosure is not harmless because Plaintiffs are prejudiced.
Plaintiffs assert the prejudice cannot be cured because Dish has
produced only a portion of those documents favorable to Dish and
not all of the documents Plaintiffs had requested during discovery.
In particular regard to the audits, Plaintiffs note that Dish did not
produce the underlying call records or any other information about
the telemarketing campaigns. Plaintiffs also express concern that
Dish will simply generate additional call records, perform another
audit, and this issue will arise again.
The Court agrees with Dish that the evidence will be relevant
to the issue of whether a permanent injunction is necessary. The
Court is troubled, however, by the position Dish took in this
litigation that evidence beyond the close of discovery was not
relevant. Moreover, Dish has known since the beginning of this
case that Plaintiffs sought a permanent injunction. Dish could
Page 27 of 39

have taken a number of steps to alert Plaintiffs to Dish’s intent to
produce evidence of Dish’s current compliance well before a few
months before trial. Instead, Dish stopped providing any call
records after 2010 and then produced an audit of certain call
records a few months before trial. As best as the Court can tell,
Dish did not produce similar information before the close of
discovery or anytime thereafter until September and October 2015.
This case has been set for trial several times, and never before, as
the date of trial neared, has Dish produced this type of information
to Plaintiffs. Moreover, it appears that Dish only produced a highly
selective portion of the documents. According to Plaintiffs, Dish did
not produce the underlying call records or any other information
about the telemarketing campaigns.
Dish’s conduct and untimely disclosure leaves Plaintiffs with
no means to challenge Dish’s audits, and Plaintiffs are substantially
prejudiced by this late disclosure. The Court finds that the
untimely production of this evidence was neither substantially
justified nor harmless.
The Court also finds that Plaintiffs’ untimely production of the
Outbound Operations Policy, updated TCPA tracker, Do-Not-Call
Page 28 of 39

Policy (revised April 2014), Do-Not-Call Escalations Form Workflow
Update (revised February 2015), and current Standard Operating
Procedures (hereinafter, the Compliance Documents) was not
substantially justified or harmless. Most of these documents were
updated or revised well before Dish produced them. Moreover, Dish
knew that Plaintiffs wanted the TCPA tracker documents because
Plaintiffs specifically requested them at the July 2013 meet-andconfer. Nonetheless, Dish failed to provide Plaintiffs with updated
information after September 2013 (the last time Dish provided
Plaintiffs with TCPA tracker information) and took the position that
evidence after June 2012 was not relevant. Therefore, the Court
finds that the failure to produce the Compliance Documents earlier
was not substantially justified.
The Court also finds that the failure to produce the
Compliance Documents was not harmless. Dish intends to admit
the evidence to show Dish’s current compliance with the
telemarketing laws. Plaintiffs will be prejudiced by the admission of
this evidence because they have never had the opportunity to
depose anyone about the documents or ensure that the new
procedures have been implemented.
Page 29 of 39

The Court will not, however, exclude the audits or the
compliance evidence. Although the case law suggests that
exclusion is mandatory when the Court finds that a Rule 26
violation was not substantially justified or harmless (see, e.g.,
Salgado, 150 F. 3d at 742), Rule 37(c) specifically provides that this
Court can, instead of excluding the evidence, order payment of
reasonable expenses, including attorney’s fees, caused by the
failure, as well as other appropriate sanctions. Fed. R. Civ. P.
37(c)(1)(A), (C).5 Consequently, in an exercise of discretion, the
Court will bifurcate the preliminary injunction issue from the other
issues in this case and reopen discovery solely on the issue of the
permanent injunction. This case will proceed to trial on January
19, 2016 on all other aspects of the case. In addition, Dish shall
pay Plaintiffs’ reasonable expenses, including attorney’s fees, for
conducting such discovery. If Dish is not willing to give Plaintiffs all
of the supplemental discovery necessary on the permanent
injunction issue, which would include call records for all
telemarketing campaigns conducted during the relevant time
The requirement of a motion and opportunity to be heard has been met
because Plaintiffs filed a motion in limine and Dish has responded. See, e.g.,
McAtee, 2011 WL 6016648, at *4 (finding due process satisfied where the
defendant had an opportunity to address its Rule 26 violation).
5

Page 30 of 39

period, and pay Plaintiffs reasonable expenses, including attorney’s
fees, then the evidence will not be admitted.
Plaintiffs shall submit to the Court, on or before January 4,
2016, a proposed discovery schedule that identifies the scope of the
additional discovery, dates for compliance, a date for the hearing on
the permanent injunction, and a date for Plaintiffs to submit their
reasonable expenses and attorney’s fees. Dish shall file a response
on or before January 15, 2016. The Court will then enter an order
setting the scope and timeline for the additional discovery.
Plaintiffs are understandably concerned that Dish will produce
another audit as the date for trial or the hearing on the permanent
injunction nears. This case needs to be resolved. Continually
producing newly-created evidence only serves to further delay this
case and imposes an undue burden on the parties and the Court.
Therefore, if any additional supplementation is necessary, the party
seeking to supplement must obtain leave of Court to do so. Dish is
advised that absent extraordinary circumstances, no additional
audits will be permitted. Plaintiffs are also advised that the
September and October 2015 audits will be considered by the Court
only as evidence of Dish’s current compliance. The Court fully
Page 31 of 39

recognizes that the audits represent only two audits of limited calls,
during a limited time period. The Court is also well aware that Dish
has refused to provide call records since 2010. All of this will factor
into the weight the Court gives the September and October 2015
audits.
2.

Documents Pertaining to Scrubbing Criteria are Excluded

Plaintiffs also seek to preclude Dish from producing certain
documents Dish recently produced that appear to be related to
scrubbing criteria for Dish calling campaigns. Plaintiffs assert that
Dish’s witness swore these documents did not exist. Dish does not
address these documents.
In an Opinion entered in April 2013, this Court held that
Defendant was precluded from using at summary judgment or trial
any documents or information about the creation and scrubbing of
telemarketing campaign lists that it did not provide to Plaintiffs in
discovery. See Opinion (d/e 279). Dish cannot avoid this ruling by
producing such documents shortly before trial. Moreover, Dish
does not address the documents containing scrubbing criteria in its
response. Therefore, the Court finds the issue forfeited. Dish

Page 32 of 39

cannot use at trial the documents pertaining to scrubbing criteria,
which are identified as trial exhibits DTX-688 through DTX-711.
3.

Failure to Produce Publicly Available Consent
Judgments, Complaints, and Orders is Harmless

Finally, Dish produced a number of publicly available consent
judgments, complaints, and orders to demonstrate how the
government valued violations in other cases. Dish indicates that
some of the documents were created in 2014 and 2015 while others
existed while discovery was open. Dish asserts it produced the
documents only as a courtesy and that it had no obligation to
produce publicly available cases during discovery.
The Court finds that any failure to produce the documents is
harmless. Plaintiffs will not be prejudiced by the admission of the
documents should they be found admissible, which Dish intends to
introduce only to show how the government valued violations in
other cases.
4.

Failure to Timely Disclose Witnesses Cagle and
Gniadek Was Substantially Justified but Witnesses
Swain, Gelston, Sitko, and Surender are Barred From
Testifying

Dish argues that its omission of the six witnesses was
substantially justified and harmless.
Page 33 of 39

Dish intends to call witnesses Swain and Gelston to testify
about Dish’s ability to pay a civil penalty. Dish asserts that the
introduction of these two witnesses is harmless and substantially
justified because Plaintiffs introduced the issue by arguing at
summary judgment that Dish could afford to pay a massive civil
penalty and seeking to introduce evidence of Dish’s financial
condition. In addition, Plaintiffs’ summary judgment filings show
that Plaintiffs have collected substantial information about Dish’s
finances. Finally, Dish’s publicly filed 2014 Annual Report
identifies Swain as the Senior Vice President and Chief Financial
Officer of the company.
Supplementation is “required only in certain circumstances,
such as when the additional information ‘has not otherwise been
made known to the other parties during the discovery
process . . . .’” Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725,
733 (7th Cir. 2004) (quoting Fed. R. Civ. P. 26(e)(1), (2)). As Dish
notes, Plaintiffs have collected substantial information about Dish’s
finances and Swain is identified as the Senior Vice President and
Chief Financial Officer of the company in the 2014 Annual Report.
However, Dish did not produce the 2014 Annual Report during
Page 34 of 39

discovery or point to any other evidence disclosed during discovery
that would have put Plaintiffs on notice that Swain or Gelston had
discoverable information. See Gutierrez, 382 F.3d at 734 (finding
the district court abused its discretion by considering the affidavit
of an undisclosed witness where the witness’s name was found on a
document uncovered by plaintiffs but not disclosed by the
defendant and where the defendant’s own Rule 30(b)(6) designee
did not know the witness when asked about him). Plaintiffs are
prejudiced by Dish’s failure to disclose these witnesses because
Plaintiffs have not had the opportunity to depose them. In addition,
Dish took the position in 2013 that evidence after the close of
discovery was not relevant. For all these reasons, the omission of
Swain or Gelston was neither harmless nor substantially justified,
and neither will be permitted to testify.
Dish also seeks to introduce the testimony of Sitko and
Surender about outbound dialing operations. Dish does not
provide any additional information about what their testimony
would be, other than that it is not on the issue of current
compliance issues. See Dish Resp. at 2 (d/e 553).

Page 35 of 39

Dish argues that the omission of Sitko and Surender is
harmless because their names came up in two depositions (in 2010
and 2011), and their names show up on some documents produced
in discovery. Supplemental disclosures are not required where the
information has otherwise been made known to the other party
during discovery. Gutierrez, 382 F.3d at 733. However, the
deposition testimony to which Dish refers only briefly mentioned
Sitko and Surender, identified them as business operations
specialists in the Outbound Operations Department, and identified
their job duties. Moreover, at the time of one of the depositions,
Surender had only worked for the company for three weeks. See
Joey L. Montano Deposition of March 15, 2011 (d/e 553-16).
Further, Dish has not shown that the references to Sitko and
Surender in other documents produced during discovery put
Plaintiffs on notice that Sitko and Surender possessed discoverable
information Dish might use to support its defenses. In a case of
this size, with the amount of discovery that has been produced, and
with the limited information Dish has provided about what
testimony Sitko and Surender are expected to give, the failure to
timely disclose them is not harmless. Dish does not explain why
Page 36 of 39

the failure was substantially justified, and the Court finds that it
was not.

Therefore, neither Sitko nor Surender will be permitted to

testify.
Finally, Dish argues that the omission of Cagle and Gniadek is
substantially justified because they only recently performed the
audits, had no earlier connection to this case, and could not have
been disclosed earlier. Because the Court is allowing Dish to
present evidence of the audits, the Court finds that omission of
Cagle and Gniadek was substantially justified as their identity was
not known to Dish earlier.
Any other objections to the introduction of evidence post-June
2012 shall be addressed at trial.
V. CONCLUSION
For the reasons stated, Plaintiffs’ Motion in Limine to
Preclude Evidence Post-Dating the Close of Fact Discovery
[526] is GRANTED IN PART and DENIED IN PART. IT IS
HEREBY ORDERED:
1. Dish may use at trial, subject to a challenge by
Plaintiffs that the documents are not otherwise admissible, the
consent judgments, complaints, and orders in other cases.
Page 37 of 39

2.

Dish is precluded from using the scrubbing criteria

documents (Ex. DTX-688 through DTX-711).
3.

Dish’s failure to timely produce the September and

October 2015 audits and the Compliance Documents was not
substantially justified or harmless. As a sanction, the Court
will reopen discovery on the issue of a permanent injunction
and require Dish to pay the reasonable expenses, including
attorney’s fees, incurred by Plaintiffs to conduct that
additional discovery. A separate hearing on Plaintiffs’ request
for a permanent injunction will be held, and the September and
October 2015 audits and Compliance Documents may only be
admitted at that separate hearing. Plaintiffs shall submit to
the Court, on or before January 19, 2016, a proposed discovery
schedule that identifies the scope of the additional discovery,
dates for compliance, a date for the hearing on the permanent
injunction, and a date for Plaintiffs to submit their reasonable
expenses and attorney’s fees. Dish shall file a response on or
before February 8, 2016. Thereafter, the Court will set the
scope of discovery and the schedule. The case will still proceed
to trial on all other issues on January 19, 2016. Dish is
Page 38 of 39

advised that no additional audits will be allowed into evidence
absent extraordinary circumstances.
4. The failure to timely disclose witnesses Cagle and
Gniadek was substantially justified. Cagle and Gniadek may
only testify at the hearing on the permanent injunction.
5. The failure to timely disclose witnesses Swain, Gelston,
Sitko, and Surender was neither substantially justified nor
harmless. These four witnesses are barred from testifying.
6. The Court shall address any other objections to the
introduction of evidence post-June 2012 at trial.
ENTER: January 4, 2016
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 39 of 39