Greifman v. Grossman & Karaszewski, PLLC

Background

Sarah Greifman sued Grossman & Karaszewski, PLLC under the Fair Debt Collection Practices Act, seeking recovery for alleged violations and initially presenting the action as a class action. The defendant answered, and the court entered a scheduling order requiring the parties to make initial disclosures under Federal Rule of Civil Procedure 26(a). The defendant served its disclosures on or about August 7, 2019. Greifman did not serve initial disclosures. Discovery closed on January 2, 2020, apparently without either side making discovery requests, and Greifman did not request an extension. She also did not pursue class certification, and the time for doing so had passed.

Motion and legal standard

The defendant filed a motion in limine—a request to restrict evidence presented at trial—under Rule 37(c). It asked the court to preclude Greifman from offering all witnesses, documents, and evidence of damages because she had not complied with Rule 26(a).

Rule 26(a) requires a party, without waiting for a discovery request, to disclose witnesses likely to have discoverable information, documents and other materials the party may use to support its claims, and a computation of claimed damages with supporting materials. Rule 37(c) generally bars a party that fails to make those disclosures from using the information or witness at trial unless the failure was substantially justified or harmless. The court considered the four factors identified by the Second Circuit: the explanation for the failure, the importance of the evidence, the prejudice to the opposing party, and whether a continuance could address the problem.

Analysis

Greifman blamed her failure on emails from the defendant’s counsel suggesting that counsel might withdraw. The court found that explanation insufficient and held that the possibility of the defendant’s counsel withdrawing did not excuse Greifman’s obligation to comply with Rule 26. The court also stated that the defendant’s conduct appeared to involve gamesmanship in bringing the motion, but that this did not eliminate Greifman’s disclosure obligation.

The court found that the excluded evidence—witnesses, documents, and damages evidence—was important to Greifman’s lawsuit and the defendant’s defense. However, the court concluded that the failure was harmless in the circumstances. The defendant could have requested supporting documents and information or deposed Greifman, but apparently did not do so. In addition, no jury trial could begin before June 1, 2020 at the earliest, and a court standing order issued because of the COVID-19 pandemic made the possibility of a continuance effectively a reality.

Ruling

Judge Halpern granted in part and denied in part the defendant’s motion in limine. Greifman’s trial evidence was limited to the witnesses and documents referenced in the defendant’s Rule 26 disclosures, provided that Greifman complied with Rule 26 within 30 days of the order. She was required to produce any documents in her possession, custody, or control referred to in section B of the defendant’s disclosures, as well as documents concerning the computation and calculation of her damages and related analyses and supporting documents. If she had no such documents, she had to state that in a sworn statement served and filed within 30 days. The court stated that no adjournments would be considered and that, if Greifman failed to comply, she would be precluded from offering any witness, document, or damages evidence at trial other than material referred to in her complaint and, subject to admissibility rules, documents attached to it. The court also ordered that neither party could conduct further discovery and directed the clerk to terminate the motion.