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NO EVIDENCE PRECLUSION HERE: Court Allows Late Submission of Critical Evidence (But Isn’t Happy About It)

We have a cautionary tale for you today, TCPAWorld! In Foster v. Nat’l Recovery Agency, No. 17-CV-6-LJV-HKS, 2021 U.S. Dist. LEXIS 176717 (W.D.N.Y. Sep. 16, 2021), Plaintiff Harry Foster sued Defendant National Recovery Agency (“NRA”) for alleged violations of the TCPA and Fair Debt Collection Practices Act. In October of 2019, Plaintiff moved for summary judgment.  Later in March 2020, NRA cross-moved for summary judgment and relied on a consent record—an intake form from NRA’s client, Eastern Niagara Radiology—to make out their summary judgment argument.

Well, as it turns out, NRA failed to produce this super critical/potentially case dispositive document until after the close of discovery. Which is, not great. Plaintiff then moved to strike the intake form in May 2020.  The Magistrate Judge assigned to the case then issued a Decision and Order denying the motion to strike and reopening discovery, at NRA’s expense, “for the limited purpose of allowing [Foster] to . . . inquire about all relevant circumstances concerning or related to” the intake form. The Magistrate Judge also “terminated without prejudice” the cross-motions for summary judgment.

In his motion to strike the intake form, Plaintiff asserted that he did not see the intake form until NRA cross-moved for summary judgment. However, after the D&O was issued, (suddenly) Plaintiff’s attorney realized that he first received the intake form in an email on August 12, 2019—three days after the close of discovery but more than two months before Plaintiff moved for summary judgment. Nonetheless, because the intake form was disclosed after the discovery deadline expired, Plaintiff challenged the Magistrate Judge’s ruling and claimed that NRA should be precluded from using it. The Western District of New York, however, disagreed. The Court explained that evidence preclusion is a very drastic remedy that wasn’t called for in this circumstance, especially because Plaintiff’s attorney actually had the form a couple months before moving for summary judgment. So, the Court affirmed the Magistrate Judge’s ruling denying the motion to strike.

For NRA’s part—they argued that they should not be responsible for bearing the costs of reopened discovery.  The Court had some choice words for Defendant, and was evidently not persuaded by their arguments. Specifically, the Court said that NRA still was responsible for not disclosing the intake record until after the close of discovery. The Court also noted that while Plaintiff’s counsel should have realized that they received the intake record way back in August 2019, NRA didn’t tell Plaintiff’s counsel about the error until April 2021—after both parties had moved for summary judgment, the Magistrate Judge issued its decision and order, and Plaintiff had objected to it. NRA also never provided any reason why the intake form was not disclosed before the discovery deadline expired and after the document had been requested by Plaintiff numerous times. The Court then affirmed the Magistrate’s decision that NRA should bear all the costs of the reopened discovery.

So, moral of the story: produce your documents on time and read all of your emails to make sure you don’t miss major potentially case dispositive document productions.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 265
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About this Author

Erin M. Gilmore Attorney Litigation Squire Patton Boggs Los Angeles
Associate

Erin Gilmore is an associate in the Litigation Practice, where she has a multifaceted practice focused on complex litigation, class action and professional liability defense, and bankruptcy.

Prior to joining the firm, Erin was an associate at Greenberg Gross LLP. She also worked as a clerk at the Ventura County Public Defender’s Office, where she assisted in the representation of indigent clients in both juvenile and felony cases.

She received her J.D. from the University of Southern California Gould School of Law....

213-689-6539
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