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Kamel v. 5Church, Inc

United States District Court, W.D. North Carolina, Charlotte Division

October 24, 2019

AYMAN KAMEL, Plaintiff,
v.
5CHURCH, INC., PATRICK WHALEN, MAP MANAGEMENT OF CHARLOTTE, LLC, and ALEJANDRO TORIO, Defendants. 5CHURCH INC., and 5CHURCH CHARLESTON, LLC, Plaintiffs,
v.
Ayman KAMEL, Defendant.

          ORDER

          ROBERT J. CONRAD, JR. UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Plaintiff Ayman Kamel's (“Kamel”) Motion in Limine Regarding Documents Produced 109 Days After the Completion of Discovery. (Doc. No. 104.)

         I. BACKGROUND

         On September 12, 2018, Kamel served his first set of interrogatories on Defendants. (Doc. No. 105-2.) Kamel's second interrogatory asked Defendants to provide a computation of each category of damages claimed by Defendants and to identify the documents and other evidentiary material on which each computation of damages is based, including any and all material bearing on the nature and extent of the sums owed to Defendants. (Doc. No. 105-2, at 5-6.) Defendants served their answers to Kamel's first set of interrogatories on November 21, 2018, which stated, in relevant part, that Defendants sought “actual damages resulting from Kamel's unauthorized access to 5Church Charlotte's e-mail accounts.” (Doc. No. 105-3, at 4.)

         Pursuant to court order, the deadline for the parties to supplement their discovery responses and Rule 26(a) disclosures, as required by Rule 26(e), was February 8, 2019, (Doc. No. 37, at 3), and the deadline for the parties to complete discovery was April 26, 2019, (Doc. No. 61).

         Notwithstanding these deadlines, on August 5, 2019-178 days after the supplementation deadline-Defendants served amended disclosures on Kamel that stated, in relevant part:

The categories of damages sought by Defendants include: . . . (ii) actual damages in the amount of $15, 691.41 resulting from Kamel's unauthorized access to 5Church Charlotte and 5Church Charleston's e-mail accounts including: $6, 968.75 in investigatory fees to Reliance Forensics, LLC, $5, 942.53 in fees to Kinetic Technologies, LLC for installation and repair of a firewall, $285.00 in fees to Mtel-One Inc. for the installation of a new security system, and $2, 495.13 in man hours accrued by 5Church Charlotte and 5Church Charlotte employees; (iii) actual damages in the amount of $13, 770.36 resulting from Kamel's implementation of an e-mail forwarding rule including: $4, 750.00 in investigatory fees to Reliance Forensics, LLC, $4, 295 in investigatory legal fees to Parker Poe Adams & Bernstein LLP, and $4, 725.36 in man hours accrued by 5Church Charlotte and 5Church Charlotte employees; . . . .

(Doc. No. 110-1, at 5.) In addition, on August 13, 2019-109 days after the discovery deadline-Defendants produced 174 pages of documents to Kamel. (Doc. No. 105-1.) These documents included: an invoice from Peritus IT Solutions dated July 10, 2017 in the amount of $136.74, an invoice from Peritus IT Solutions dated September 27, 2017 in the amount of $227.91, an invoice from Kinetic Technologies, LLC dated October 30, 2017 in the amount of $5, 942.53, an invoice from Mtel-One Inc. dated July 11, 2017 in the amount of $285, an invoice from Reliance Forensics, LLC dated December 2, 2017 in the amount of $6, 968.75, and approximately fifty-three bounce back emails between April 21, 2016 and March 21, 2017 to Defendant Patrick Whalen (“Whalen”) and other employees of Defendants stating that the email had failed to deliver to Kamel's Gmail address. (Doc. No. 105-1.)

         Kamel filed the instant motion on August 21, 2019 to preclude Defendants from introducing these documents into evidence at trial, which is set to begin on November 4, 2019. (Doc. No. 105.)

         II. DISCUSSION

         Rule 26(a) requires a party, at the outset of the litigation and “without awaiting a discovery request, ” to provide to the opposing parties “a computation of each category of damages claimed by the disclosing party-who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material . . . on which each computation is based, including materials bearing on the nature and extent of injuries suffered.” Fed.R.Civ.P. 26(a)(1)(A)(iii). Under Rule 26(e), a party must supplement or correct its Rule 26(a) disclosures and any other discovery responses “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1)(A).

         A party's failure to comply with Rule 26(a) or (e) implicates Rule 37(c)(1), which states:

If a party fails to provide information . . . 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. In addition to or instead of this ...

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