*1 This matter appears before the Court on Defendant Polaris Transport Carriers, Inc.'s Motion to Exclude Testimony of Certain Belatedly Disclosed Fact Witnesses at Trial (Doc. No. [90]) and the parties' related discovery dispute concerning deposition noticing and scheduling.[1] The witnesses at issue are Jeremy Lazarus and QTS. Doc. No. [90-1], p. 9.

Defendant Polaris moves pursuant to Federal Rule of Civil Procedure 37(c) to exclude the testimony of Plaintiff's recently-disclosed fact witnesses Jeremy Lazarus and QTS. Doc. No. [90]. Defendant states that it “was deprived of the opportunity to depose these non-party witnesses during the discovery period in this case and prior to the filing of dispositive motions.” Doc. No. [90-1], p. 12.

Federal Rule of Civil Procedure 37(c) states in relevant part: “[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(c)(1).[2]

“[S]ome courts have employed a series of factors to determine whether a failure to comply with Rule 26(a) is ‘substantially justified’ or ‘harmless.’ ” Ga. State Conference of the NAACP v. Fayette Cty. Bd. of Comm'ns, No. 3:11-CV-00123-TCB, 2015 WL 12089805, at *3 (N.D. Ga. July 7, 2015) (citing Bruce v. Classic Carrier, Inc., No. 1:11-cv-01472-JEC, 2014 WL 1230231, at *10 (N.D. Ga. Mar. 24, 2014). “For example, in Bruce, the court analyzed the following three factors: “(1) the importance of the testimony; (2) the reason for the [party's] failure to disclose the witness earlier; and (3) the prejudice to the opposing party if the witness [were] allowed to testify.” Id. (citations omitted). “Although the Court need not constrain its analysis to a rigid set of factors, given the parties' arguments, the Bruce factors serve as a useful guide for discussion in this case.” Id.

“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 F. App'x 821, 824 (11th Cir. 2009) (citations omitted).

*2 In the case sub judice, in opposition to Defendant Polaris's arguments, Plaintiff asserts that its recent witness disclosure is substantially justified and is harmless. Doc. No. [93], p. 5. While not exactly clear, Plaintiff's substantial justification arguments appear to be based on the rulings in the Court's February 18, 2020 order denying Plaintiff's summary judgment on the ground of failure to establish a prima facie Carmack Amendment case. Plaintiff appears to argue that the Court made recent conclusions about the law.

“Substantially justified [in the context of Rule 37(c)] means that reasonable people could differ as to the appropriateness of the contested action.” Knight through Kerr v. Miami-Dade Cty., 856 F.3d 795, 812 (11th Cir. 2017) (citing Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997)); see also Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993).

After review, the Court does not find that the new witness disclosures at issue are substantially justified based on the Court's summary judgment ruling in that the law cited in the Court's order concerning a prima facie Carmack Amendment case has existed in the Eleventh Circuit since 2003, which is well before the filing of the parties' summary judgment motions. See Doc. No. [86], pp. 15–17; see also A.I.G. Uruguay Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 1004 (11th Cir. 2003).

The fact that Plaintiff's Counsel was not aware of the law referenced by the Court in its order does not make Plaintiff now substantially justified to now seek to disclose additional witnesses. See Harrison v. Burlage, No. 08-80989-CIV, 2009 WL 10701411, at *3 (S.D. Fla. Sept. 18, 2009) (holding that “[p]laintiffs' mistake of law as to whether or not they needed to formally disclose their expert witnesses to the defendants is not a substantial justification.... Plaintiffs' mistake, whether innocent or not, does not provide a substantial justification for failing to disclose their experts by this Court's deadline.”); cf. Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 392 (1993) (holding that inadvertence does not usually constitute excusable neglect).

Despite the absence of substantial justification, the Court finds that Plaintiff has met its burden of showing harmlessness. Returning to the above-stated Bruce factors, the Court notes that the testimony at issue is important to Plaintiff establishing a prima facie Carmack Amendment case. Plaintiff has asserted inadvertence as the reason for the failure to disclose the two witnesses at issue. Plaintiff also asserts an absence of prejudice to Defendant mainly based on its willingness to make witness Lazarus and other representatives conveniently available to Defendant. The Court recognizes that in contrast, Defendant Polaris asserts prejudice inter alia on the basis of discovery and the dispositive motions practice having already concluded.[3]

After review, the Court finds that the prejudice asserted by Defendant Polaris is not substantial and can be cured by the Court allowing (upon request by motion) additional time for Defendant to meet and refute the evidence that Plaintiff will present through the two newly disclosed witnesses. See Bosch v. Title Max, Inc., No. CIV A 03-AR-0463-S, 2004 WL 5238128, at *4 (N.D. Ala. Aug. 25, 2004) (“Failure to disclose is considered ‘harmless’ where there is no substantial prejudice to the party entitled to receive the disclosure.”).

*3 Defendant's Motion to Exclude (Doc. No. [90]) is DENIED. It is further ORDERED that in regard to the parties' discovery dispute, the deposition for Plaintiff's newly disclosed witness, Jeremy Lazarus, may go forward on logistical terms mutually agreeable to the parties in light of the current COVID-19 pandemic. However, the deposition must occur within SIXTY DAYS of the entry of this Order.[4]

IT IS SO ORDERED this 25th day of March, 2020.