Kamel v. 5Church, Inc et al

Filing 131

ORDER granting in part and denying in part 104 Motion in Limine Regarding Documents Produced 109 Days After the Completion of Discovery.. Signed by District Judge Robert J. Conrad, Jr on 10/24/2019. (brl)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-507-RJC-DCK
AYMAN KAMEL,

)
)
Plaintiff,
)
)
v.
)
)
5CHURCH, INC., PATRICK WHALEN,
)
MAP MANAGEMENT OF CHARLOTTE,
)
LLC, and ALEJANDRO TORIO,
)
)
Defendants.
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_________________________________________ )
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5CHURCH INC., and 5CHURCH
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CHARLESTON, LLC,
)
)
Plaintiffs,
)
)
v.
)
)
Ayman KAMEL,
)
)
Defendant.
)

ORDER

THIS MATTER is before the Court on Plaintiff Ayman Kamel’s (“Kamel”)
Motion in Limine Regarding Documents Produced 109 Days After the Completion of
Discovery. (Doc. No. 104.)
I.

BACKGROUND
On September 12, 2018, Kamel served his first set of interrogatories on

Defendants. (Doc. No. 105-2.) Kamel’s second interrogatory asked Defendants to
provide a computation of each category of damages claimed by Defendants and to
identify the documents and other evidentiary material on which each computation of

damages is based, including any and all material bearing on the nature and extent of
the sums owed to Defendants. (Doc. No. 105-2, at 5–6.) Defendants served their
answers to Kamel’s first set of interrogatories on November 21, 2018, which stated,
in relevant part, that Defendants sought “actual damages resulting from Kamel’s
unauthorized access to 5Church Charlotte’s e-mail accounts.” (Doc. No. 105-3, at 4.)
Pursuant to court order, the deadline for the parties to supplement their
discovery responses and Rule 26(a) disclosures, as required by Rule 26(e), was
February 8, 2019, (Doc. No. 37, at 3), and the deadline for the parties to complete
discovery was April 26, 2019, (Doc. No. 61).
Notwithstanding these deadlines, on August 5, 2019—178 days after the
supplementation deadline—Defendants served amended disclosures on Kamel that
stated, in relevant part:
The categories of damages sought by Defendants include: . . . (ii) actual
damages in the amount of $15,691.41 resulting from Kamel’s
unauthorized access to 5Church Charlotte and 5Church Charleston’s email accounts including: $6,968.75 in investigatory fees to Reliance
Forensics, LLC, $5,942.53 in fees to Kinetic Technologies, LLC for
installation and repair of a firewall, $285.00 in fees to Mtel-One Inc. for
the installation of a new security system, and $2,495.13 in man hours
accrued by 5Church Charlotte and 5Church Charlotte employees; (iii)
actual damages in the amount of $13,770.36 resulting from Kamel’s
implementation of an e-mail forwarding rule including: $4,750.00 in
investigatory fees to Reliance Forensics, LLC, $4,295 in investigatory
legal fees to Parker Poe Adams & Bernstein LLP, and $4,725.36 in man
hours accrued by 5Church Charlotte and 5Church Charlotte
employees; . . . .
(Doc. No. 110-1, at 5.) In addition, on August 13, 2019—109 days after the discovery
deadline—Defendants produced 174 pages of documents to Kamel. (Doc. No. 105-1.)
These documents included: an invoice from Peritus IT Solutions dated July 10, 2017
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in the amount of $136.74, an invoice from Peritus IT Solutions dated September 27,
2017 in the amount of $227.91, an invoice from Kinetic Technologies, LLC dated
October 30, 2017 in the amount of $5,942.53, an invoice from Mtel-One Inc. dated
July 11, 2017 in the amount of $285, an invoice from Reliance Forensics, LLC dated
December 2, 2017 in the amount of $6,968.75, and approximately fifty-three bounce
back emails between April 21, 2016 and March 21, 2017 to Defendant Patrick Whalen
(“Whalen”) and other employees of Defendants stating that the email had failed to
deliver to Kamel’s Gmail address. (Doc. No. 105-1.)
Kamel filed the instant motion on August 21, 2019 to preclude Defendants
from introducing these documents into evidence at trial, which is set to begin on
November 4, 2019. (Doc. No. 105.)
II.

DISCUSSION
Rule 26(a) requires a party, at the outset of the litigation and “without

awaiting a discovery request,” to provide to the opposing parties “a computation of
each category of damages claimed by the disclosing party—who must also make
available for inspection and copying as under Rule 34 the documents or other
evidentiary material . . . on which each computation is based, including materials
bearing on the nature and extent of injuries suffered.” Fed. R. Civ. P. 26(a)(1)(A)(iii).
Under Rule 26(e), a party must supplement or correct its Rule 26(a) disclosures and
any other discovery responses “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

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parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A).
A party’s failure to comply with Rule 26(a) or (e) implicates Rule 37(c)(1), which
states:
If a party fails to provide information . . . as required by Rule 26(a) or
(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
substantially justified or is harmless. In addition to or instead of this
sanction, the court, on motion and after giving an opportunity to be
heard:
(A) may order payment of the reasonable expenses, including attorney’s
fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) 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). “District courts are accorded broad discretion in determining
whether a party’s nondisclosure or untimely disclosure of evidence is substantially
justified or harmless.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 190 (4th Cir.
2017) (quotation marks omitted). The Fourth Circuit has held that
in exercising its broad discretion to determine whether a nondisclosure
of evidence is substantially justified or harmless for purposes of a Rule
37(c)(1) exclusion analysis, a district court should be guided by the
following factors: (1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would disrupt the
trial; (4) the importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the evidence.
S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.
2003).

“The first four factors listed above relate primarily to the harmlessness

exception, while the last factor, addressing the party’s explanation for its
nondisclosure, relates mainly to the substantial justification exception.” Bresler, 855

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F.3d at 190. District courts are not required, however, to expressly consider each
factor in deciding whether a nondisclosure or untimely disclosure was substantially
justified or harmless. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014);
Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir. 2011).
Here, it is undisputed that Defendants failed to timely supplement its Rule
26(a) disclosures and discovery responses as required under Rule 26(e). Defendants
did not supplement its disclosures to provide a computation of damages until August
5, 2019—which was 178 days after the supplementation deadline. 1

Moreover,

Defendants did not produce the supporting invoices until August 13, 2019—which
was 186 days after the supplementation deadline and 109 days after the close of
discovery. Defendants fail to offer any explanation for their untimely disclosure,
much less a substantially justified one.

However, in the exercise of its broad

discretion, the Court concludes that Defendants’ untimely disclosure may be rendered
harmless by allowing Kamel the opportunity to take the deposition of any witness
regarding the invoices and Defendants’ damages computations.

Allowing the

evidence will not disrupt the trial, and any surprise to Kamel from the invoices is
limited because Whalen testified during his deposition that Defendants’ damages
include paying to transfer the email server and engaging consultants to identify and
fix the problem, which is reflected in the invoices. This limited surprise can be cured
by allowing Kamel to depose any witness regarding the invoices and Defendants’

There is no evidence in the record that Defendants ever supplemented their
responses to Kamel’s first set of interrogatories, which also asked for damages
computations and the documents on which such computations were based.
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damages computations. In addition, in its discretion under Rule 37(c)(1) and 37(b),
the Court awards Kamel his reasonable attorney’s fees and costs in pursuing this
motion and scheduling and taking these eleventh hour depositions necessitated by
Defendants’ failure to comply with Rule 26(e) and this Court’s scheduling order.
III.

CONCLUSION
IT IS THEREFORE ORDERED that Kamel’s Motion in Limine Regarding

Documents Produced 109 Days After the Completion of Discovery, (Doc. No. 104), is
GRANTED in part and DENIED in part. Defendants shall make available to Kamel
any witness Kamel indicates for deposition regarding the invoices produced on
August 13, 2019 and Defendants’ damages computations disclosed on August 5, 2019.
Such deposition shall be concluded no later than 5:00 p.m. on Friday, November 1,
2019. Upon compliance with this directive, Defendants may introduce the untimely
produced documents into evidence at trial. Defendants shall also pay Kamel his
reasonable attorney’s fees and costs incurred in pursuing this motion. Kamel shall
submit a supporting affidavit or other evidence of such fees and costs within twentyone (21) days of this Order. Defendants shall have fourteen (14) days from Kamel’s
submission to submit a response thereto.

Signed: October 24, 2019

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