Case 4:14-cv-00085-MW-CAS Document 41 Filed 12/16/14 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

CINDY HEFFERNAN,
Plaintiff,
v.
Case No. 4:14cv85-MW/CAS
NORTH FLORIDA WORKFORCE
DEVELOPMENT BOARD,
Defendant.
________________________________________ /
ORDER ON DEFENDANTS MOTION TO STRIKE
The matter before this Court is Defendants motion to strike materials which
Plaintiff submitted in support of her opposition to Defendants summary-judgment
motion. After consideration of the papers submitted by the parties, the motion to
strike, ECF No. 36, is granted in part and denied in part.
I
Most of the challenged materials are transcripts of examinations under oath
(EUOs) of potential witnesses. Plaintiff disclosed all but one witness under
Federal Rule of Civil Procedure 26 but not the transcripts. After learning of these
transcripts from a witness, and attempting unsuccessfully to obtain them from
Plaintiff, Defendant moved to compel production. This Court denied that motion,
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holding the EUOs were trial-preparation materials and Plaintiffs lack of

supplemental discovery responses was substantially justified under Rule 37. ECF
No. 37. All that was said there is not repeated here. But for the same reasons,
transcripts of EUOs from witnesses that Plaintiff properly disclosed under Rule 26
will not be stricken for violation of the discovery rules.
II
The undisclosed witnesss EUO transcript is different. A party must
disclose the name and, if known, the address and telephone number of each
individual . . . that the disclosing party may use to support its claims . . . . Fed. R.
Civ. P. 26(a)(1)(A)(i). If a party fails to . . . identify a witness as required . . . the
party is not allowed to use that . . . witness to supply evidence on a motion . . .
unless the failure was substantially justified or is harmless. Fed. R. Civ. P. 37
(c)(1).
The burden of establishing that a failure to disclose was substantially
justified or harmless rests on the nondisclosing party. Mitchell v. Ford Motor
Co., 318 Fed. Appx. 821, 824 (11th Cir. 2009) (quotation marks omitted). To
determine whether the failure to disclose was justified or harmless, a court
considers the non-disclosing party's explanation for its failure to disclose, the
importance of the information, and any prejudice to the opposing party if the
information had been admitted. Lips v. City of Hollywood, 350 F. App'x 328, 340
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(11th Cir. 2009) (citing Romero v. Drummond Co., 552 F.3d 1303, 1321 (11th
Cir.2008)).
Plaintiff was aware of the witness as early as July 2014 and took the
statement in question on August 3, 2014. ECF No. 38 at 1. Discovery closed on
September 24, 2014. ECF No. 13. On November 10, 2014, Plaintiff disclosed this
witness through the filing of the EUO transcript in support of the response to
Defendants summary-judgment motion. See ECF No. 33-10.
Plaintiff offers no justification for the failure to disclose the witness, only the
explanation that the witness was inadvertently omitted. Until this statement was
filed, Plaintiff had given Defendant no notice that Ms. Strimple might have
discoverable or relevant information.
The allegations in this case are that Defendant violated the Americans with
Disabilities Act by withdrawing a scheduling accommodation that Plaintiff needed
to care for a disabled child and then terminating her employment for pretextual
reasons. The undisclosed witness, Darlene Strimple, also cares for a disabled
child. Plaintiff says that Ms. Strimple also received a higher level of criticism
from [one of Defendants employees], culminating in disciplinary action, alleged
deficient work performance, and a position transfer. ECF No. 32 at 5. Plaintiff
offers Ms. Strimples statement as circumstantial evidence of Defendants

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discriminatory intent, no doubt to counter the argument in Defendants summaryjudgment motion that Plaintiff had no such evidence. See ECF No. 23 at 23.
Perhaps this is not the most important evidence in the case, but it is
significant. And it is expected that after discovery closes, parties to a case evaluate
the evidence and prepare strategies for the resolution of the merits, relying on each
other to have been forthcoming under the rules. The rules set a substantial
though not insurmountablehurdle for the party frustrating that process by
surprising the adversary late in the game.
In this instance, Plaintiff has failed to meet her burden of establishing that
the failure to disclose this witness is substantially justified or harmless under Rule
37(c). So this Court will strike Ms. Strimples statement.
III
Finally, Defendant moves to strike the EUOs and portions of Plaintiffs
affidavit for failure to comply with Rule 56(c)(4), which says that an affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.
A party must move to strike a defective affidavit or else waive any
objection. See 10B Wright & Miller, Federal Practice & Procedure 2738 (3d
ed.). But a court will only disregard the inadmissible and incompetent evidence
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and will consider the rest. Id.; Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1306 (11th Cir. 2011) (disregarding statements lacking personal
knowledge); Lee v. Nat'l Life Assur. Co. of Canada, 632 F.2d 524, 529 (5th Cir.
1980) (disregarding inadmissible portions of affidavits). It follows that a motion
to strike should specify the objectionable portions of the affidavit and the grounds
for each objection. A motion asserting only a general challenge to an affidavit will
be ineffective. 10B Wright & Miller, 2738.
When ruling on Defendants summary-judgment motion, this Court will,
where necessary, explain its application of the above principles to Plaintiffs
evidence. But neither Defendants general objection to the EUOs nor the examples
given are enough to strike them in their entirety.
As to the Plaintiffs affidavit, this Court is mindful that on summary
judgment, reasonable inferences must be drawn in favor of the nonmoving party.
It is also cognizant of the law regarding contradictions between a persons affidavit
and deposition testimony and will appropriately apply it. This Court will
disregard statements that are conclusory, inadmissible, or beyond the affiants
personal knowledge.
For these reasons,
IT IS ORDERED:

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1. Defendants motion to strike, ECF No. 36, is GRANTED in part and

DENIED in part as stated above.
2. The examination under oath of Darlene Strimple, ECF No. 33-10, is
stricken.
SO ORDERED on December 16, 2014.

s/Mark E. Walker
United States District Judge