The Southern District Court in Florida recently issued an unreported opinion involving a discovery dispute between the parties where the insurer sought to have the condominium association’s expert reports stricken from consideration at trial because they were not timely disclosed. The ruling focused on disclosure requirements found in the Federal Rules of Civil Procedure. The crux of the condominium association’s case was potentially at stake in this dispute.
The claim involved damages to condominium association property from Hurricane Wilma. The association filed a lawsuit against their insurer in January 2010 as the claim remained unpaid. The association’s expert disclosures were due on November 22, 2010, and the insurer would then have until December 22, 2010 to file its own expert disclosures. Pursuant to one Court-approved extension, the association submitted “initial” reports of two of its experts, but not for two other experts. In late January 2011, the association served the expert report of its meteorologist. The next day, the insurance company filed its motion to strike the association’s expert disclosures. In its opposition, the association asked the Court to deem the meteorologist report timely filed due to “excusable neglect,” “good cause,” “substantial justification,” and “harmless error.”
Pursuant to Federal Rule 26, if a party fails to provide information or identify a witness as required by the Rule, that 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. That sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26 was either justified or harmless.
The District Court ultimately struck three of the association’s experts, holding, the association’s failure to comply with Rule 26 was neither substantially justified nor harmless. The Court did not strike the association’s meteorological expert report, finding that the failure to timely disclose his report was harmless.
