*1 Plaintiff Arleta Mongue (“Plaintiff”) is a former employee of the defendant The Wheatleigh Corporation (“Wheatleigh”), which was owned and operated by the remaining defendants L. Linfield Simon, Susan Simon, and Marc Wilhelm (“Wilhelm”) (collectively, “Defendants”). Plaintiff alleges in her amended complaint that Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., by failing to pay her an overtime premium, paying her less than the federal minimum wage, not providing proper notice before utilizing a tip credit, and operating an illegal tip pool. Plaintiff also states state law claims against these Defendants under Massachusetts wage laws. Specifically, Plaintiff claims that Defendants violated the Massachusetts Fair Minimum Wage Act, Mass. Gen. Laws ch. 151, §§ 1, 7, by paying Plaintiff the service rate when she should have received full minimum wage due to Defendants’ unlawful distribution of its tip pools, the un-tipped tasks to which Plaintiff was assigned, and Defendants’ failure to provide proper written notice before utilizing the service rate; the Massachusetts Tips Act, Mass. Gen. Laws ch. 149, § 152A, by unlawfully distributing wages from the tip pool to non-wait staff employees and supervisors; and the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, §§ 148, 150, by failing to timely pay wages. Before the court is Plaintiff's Motion to Strike Undisclosed Document (Dkt. No. 88).[1] The parties have consented to this court's jurisdiction (Dkt. No. 14). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the following reasons, Plaintiff's motion to strike is DENIED.

Plaintiff moves to strike a copy of the Massachusetts Attorney General's Wage and Hour Laws poster, which Defendants attached to an affidavit filed in support of their opposition to Plaintiff's motion for partial summary judgment as to liability and their cross-motion for summary judgment. Defendants rely on testimony that the poster was prominently displayed at Wheatleigh in connection with their defense of Plaintiff's claim that they did not provide proper notice of their intent to claim a tip credit under federal and state law. Plaintiff argues that the poster should be stricken from the record pursuant to Fed. R. Civ. P. 26(a), 26(e), and 37(c)(1) based on Defendants’ failure to disclose the document during discovery, either as part of their required initial disclosures or in response to Plaintiff's document requests. Defendants counter that a motion to strike is not the appropriate vehicle for objecting to material cited to support or dispute a fact, that the poster was not responsive to Plaintiff's initial document requests, and that, even if it was responsive, there was no prejudice to Plaintiff in their failure to produce it.

*2 As aptly pointed out by Defendants, Plaintiff's original complaint did not include a claim that Defendants’ notice of its intention to claim a tip credit was deficient (Dkt. No. 1). Plaintiff did not raise the notice claim until she filed her first amended class action complaint (Dkt. No. 61). Thus, the poster did not fall within the scope of the required Fed. R. Civ. P. 26(a)(1) initial disclosures, and, contrary to Plaintiff's argument, it was not responsive to Plaintiff's initial set of document requests. The poster is responsive to Plaintiff's second set of document requests; however, Defendants had not yet responded to these document requests at the time Plaintiff filed her motion for partial summary judgment. Nor can the court conclude that Defendants’ production was late or that it occurred outside the discovery period. The parties have not provided the court with the date of the second set of document requests, and, while the electronic clerk's notes for September 3, 2020, indicate that a revised scheduling order would issue, none did, and therefore, there was no operative deadline for the close of non-expert discovery (Dkt. No. 74).

Nevertheless, Plaintiff is correct that Defendants were under a duty to supplement their initial disclosures in a timely fashion pursuant to Fed. R. Civ. P. 26(e)(1)(A). That rule provides that a party who has made a disclosure under Rule 26(a) must supplement its disclosure “in a timely manner” if the party learns that its disclosure was incomplete, and it has not made the additional information known to the other parties during the discovery process. Fed. R. Civ. P. 26(e)(1). The poster plainly falls within the scope of Fed. R. Civ. P. 26(a)(1)(A)(ii), which requires a party, without awaiting a discovery request, to produce “a copy – or a description by category and location – of all documents ... that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.”[2] Fed. R. Civ. P. 26(a). Yet over six months elapsed between the filing of Plaintiff's first amended class action complaint and Defendants’ opposition to Plaintiff's motion for partial summary judgment and cross-motion for summary judgment. Assuming without deciding that this constituted a failure to timely supplement, the rules provide that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the 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. Fed. R. Civ. P. 37. The rule further provides that, “[i]n addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Id.

Defendants make no effort to establish that their failure to produce the poster was substantially justified. Nevertheless, the court concludes under the circumstances of this case that the failure to disclose was harmless. While Defendants did not file the poster appended to the affidavit until January 28, 2020, L. Linfield Simon testified in his deposition, which took place on December 1, 2019, to its existence and display at Wheatleigh in response to questioning about whether he had any reason to believe Plaintiff had been provided with written notice about the tip credit. Thus, Plaintiff should have been aware at least as of that time that Defendants would rely on the poster as a defense to a claim of lack of notice, and the poster is publicly available. Indeed, Plaintiff revealed her awareness when she argued in her motion for partial summary judgment that she anticipated that Defendants might argue that a workplace poster is sufficient to meet the FLSA and Massachusetts notice requirements (Dkt. No. 78 at 9-10). Thus, Plaintiff has not been deprived of her opportunity to argue against the sufficiency of the poster in connection with her motion for partial summary judgment.

*3 Plaintiff argues that the late disclosure cannot be considered harmless because of her concern that Defendants went online and printed a copy of the poster from the relevant time period instead of producing the original. The court rejects this argument. In the affidavit of Marc Wilhelm to which the poster is appended, Wilhelm acknowledges that Wheatleigh is no longer in possession of the actual poster that was displayed at Wheatleigh. Thus, Defendants cannot produce the original and instead have produced what Wilhelm has identified as a true and accurate copy of what was posted. Plaintiff has offered no reason to question its authenticity in connection with the summary judgment motions. For these reasons, the court denies Plaintiff's request to strike the poster from the summary judgment record and will consider it.

For the above-stated reasons, Plaintiff's motion to strike undisclosed document (Dkt. No. 88) is DENIED.

It is so ordered.