*1 This case arises from a house fire. The dispute is over the amount due under a homeowners insurance policy. The plaintiffs are the homeowners. The defendant is the insurer. The case is before the court on three defense motions resulting from the plaintiffs' egregious failures to make Federal Rule of Civil Procedure 26 disclosures and to respond properly to interrogatories and production requests.

The first motion seeks to compel Rule 26(a)(1)(A)(iii) damages disclosures, to compel proper interrogatory answers, and to compel document production. The plaintiffs have made no 26(a)(1)(A)(iii) disclosures at all, and the deadline has long passed. The plaintiffs served woefully inadequate responses to the interrogatories and production requests, did not provide a privilege log, and failed to cure the deficiencies or provide a privilege log after repeated requests. The plaintiffs did not file a memorandum in response to the motion as required by Local Rule 7.1. This order grants the motion to compel, but does not preclude the plaintiffs from seeking a damages award, despite their failure to serve the required damages disclosure. The reason is that the plaintiffs provided at some point a schedule listing repair costs—apparently a disclosure of claimed damages—reducing if not eliminating the prejudice from failing to make timely and proper 26(a)(1)(A)(iii) disclosures. This order also does not require the plaintiffs to produce communications directly and solely between the plaintiffs and their attorney of record.

The second motion seeks to exclude testimony of experts for whom 26(a)(2) disclosures were not made. Two of the experts also failed to show up for duly noticed depositions for which they had been subpoenaed. One said he would show up only if paid in advance, a condition he had no right to impose. See, e.g., Bartram, LLC v. Landmark Am. Ins. Co., No. 1:10-cv-28, 2011 WL 13186055, at *1-2 (N.D. Fla. Feb. 16, 2011); Regions Bank v. Kaplan, No. 8:12-cv-1837, 2015 WL 4935694, at *2 (M.D. Fla. Aug. 18, 2015). The plaintiffs again did not file a memorandum in response to the motion to exclude testimony as required by Local Rule 7.1.

The third motion, probably redundant to the second, seeks to exclude testimony of a specific expert for whom 26(a)(2) disclosures were not made.

The motions were set for a hearing by telephone. The plaintiffs' attorney did not call in for the hearing. Reached by the court's staff roughly 20 minutes after the scheduled time, the attorney joined the hearing and blamed a paralegal for failing to calendar the deadline to file written responses to the motions and failing to calendar the hearing. The attorney offered no colorable explanation for the original, deficient responses to the interrogatories and production requests.

This order grants the motions to exclude expert testimony for which 26(a)(2) disclosures were not made. Under Federal Rule of Civil Procedure 37(c), if a party fails to provide information or identify a witness as required by Rule 26(a), 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.”

*2 Here the plaintiffs' failure to provide information—that is, to make the required 26(a)(2) disclosures—was not substantially justified or harmless. The plaintiffs have offered no justification at all—even a failure to calendar the deadline does not justify ignoring the 26(a)(2) obligation throughout the discovery period. Discovery has now closed, and trial is imminent. The schedule provides the remaining time between now and the trial so that the parties may make final preparations for trial, prepare a pretrial stipulation, and go through the pretrial process. This is not the occasion to learn for the first time the substance of the adverse party's expert testimony, depose the experts, and determine how to meet the testimony. This was an egregious, unjustified, prejudicial failure to make disclosures, warranting exclusion of the evidence. See Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 718-19 (11th Cir. 2019) (affirming district court's exclusion of untimely expert testimony); see also Reese v. Herbert, 527 F.3d 1253, 1264-65 (11th Cir. 2008); Greater Hall Temple Church of God v. S. Mut. Church Ins. Co., 820 F. App'x 915, 919-20 (11th Cir. 2020).

A court has discretion to impose an alternative sanction instead of or in addition to excluding the evidence, but the better exercise of discretion here is to exclude the evidence. If a party could ignore the duty to make 26(a)(2) disclosures as thoroughly as this one has, and word got around as it surely would, compliance would become discretionary with the party, not mandatory. The failure to file a response to the first motion to exclude, and the failure to appear for the hearing until contacted by the court, provide further support for the ruling.

Under Federal Rule of Civil Procedure 37(a)(5)(A), the party or attorney whose conduct necessitated a discovery motion “must” be ordered to pay the reasonable expenses incurred in making the motion, including attorney's fees, unless the moving party filed the motion before attempting in good faith to obtain the discovery without court action, or the opposing party's position was “substantially justified,” or “other circumstances make an award of expenses unjust.” Unless one of these conditions is met, an award of expenses is “mandatory.” Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993) (citing Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1019 (5th Cir. Unit A June 1981)). A position is “substantially justified” if it results from a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations, quotation marks, and brackets omitted); Devaney, 989 F.2d at 1163.

Under the circumstances of this case, an award is “mandatory,” and I would make an award as a matter of discretion even if an award was not mandatory. To avoid unnecessary expense in determining the amount of the fee award, this order sets an amount, subject to redetermination.

For these reasons,

IT IS ORDERED:

1. The defendant's motion to compel Rule 26(a)(1)(A)(iii) disclosures, interrogatory answers, and document production, ECF No. 23, is granted.

2. By December 1, 2022, the plaintiffs must serve complete 26(a)(1)(A)(iii) disclosures.

3. By December 1, 2022, the plaintiffs must serve complete answers to the interrogatories 2, 3, 4, 5, 6, 8, 9, 10, 11, 16, and 22.

4. By December 1, 2022, the plaintiffs must produce the documents described in production requests 7, 8, 11, 13, 14, 16, 17, 19, 23, 32, 33, 34, 37, 40, 41, and 51. But the compelled document production under paragraphs 14 and 16 is limited to the time period after the subject fire. And the plaintiffs need not produce communications directly and solely between the plaintiffs and their attorney in this litigation.

5. The motions to exclude expert testimony, ECF Nos. 24 and 26, are granted. Expert testimony for which timely 26(a)(2) disclosures were not made is excluded.

*3 6. The plaintiff must pay the defendant $2,000 as attorney's fees. If a party asserts that this is not the amount of fees reasonably incurred by the defendant on the motion to compel, the party may move within 14 days to redetermine the amount, and the matter will be reconsidered de novo. Attorney's fees may be assessed against the party who loses any such motion to redetermine. The fees assessed under or based on this order must be paid by December 8, 2022 (if no motion to redetermine is filed) or within 14 days after entry of an order on any motion to redetermine.

SO ORDERED on November 18, 2022.