A big win just came in for a TCPA defendant! That’s right, the Middle District of Florida just ruled that a defendant’s late production of consent forms was harmless and denied the plaintiff’s motion to strike. Given the importance of these documents to the fair resolution of the case, it seems to me that the Court prioritized just that in rendering this decision.

For some background on this case, check out the Countess’s previous blog discussing the Court’s denial of the defendant’s motion to dismiss and some important procedural issues. FTSA Class Action Moves Forward: Court Confirms Rule 23 Does Not Modify Substantive Rights – TCPAWorld.

In this iteration of Morris v. Lincare, Inc., No. 8:22-cv-2048-CEH-AAS, 2024 WL 4591084 (M.D. Fla. Oct. 28, 2024), Plaintiff asked the Court to strike two exhibits Defendant Lincare, Inc. (“Lincare”) filed as part of its opposition to Plaintiff’s motion for class certification. These exhibits contained responses to Plaintiff’s discovery request—namely, models of Lincare’s consent forms—which the Court ordered Lincare to produce by February 16, 2024. Lincare’s filing of these documents in June of 2024 was, therefore, well past the Court’s deadline. Lincare, for its part, argued that “its late production was substantially justified, inadvertent, and harmless.” Id. at *1.

Now, the Federal Rules of Civil Procedure provide that a party “must supplement or correct its disclosure or response in a timely manner[.]” Id. (quoting Fed. R. Civ. P. 26(e)) (alterations in original). And if a party fails to do so, “the party is not allowed to use that information [] to supply evidence on a motion [] unless the failure was substantially justified or is harmless.” Id. (quoting Fed. R. Civ. P. 37(c)(1)) (alterations in original). To determine whether a party meets this standard, Courts consider:

• 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 non-disclosing party’s explanation for its failure to disclose the evidence.

Id. (internal citation omitted).

In applying these factors, the Court found each one to favor Lincare. First, it found that there would be “minimal, if any, surprise because Lincare produced substantially similar exemplars.” Id. Second, the Court had already extended the discovery deadline to December, which would cure any potential surprise. Plaintiff also had two months from the filing of the consent forms until oral argument on class certification. The Court noted that “[t]hese extensions alone render Lincare’s alleged error harmless.” Id. (internal citation omitted).

Third, the June 2025 trial date was far enough to eliminate potential disruption. Fourth, consent is “pivotal” in a TCPA case. And finally, Lincare attributed its delay to its search for individual patient records, which it needed to oppose Plaintiff’s motion for class certification, and which entailed a different search process than it would’ve conducted for the consent forms. The Court found that “[t]his explanation shields Lincare from the extreme sanction of striking consent forms from consideration for the rest of this case.” Id. (internal citation omitted).

With that, the Court found the late filing to be substantially justified and harmless—a big win for Lincare in the trajectory of the litigation.