The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JERARD BROWN and
ELIZABETH CARDONA,
Plaintiffs,
v. Case No. 8:18-cv-2838-T-24 JSS
VIVINT SOLAR, INC., ET AL.,
Defendants.
______________________________/
ORDER
This cause comes before the Court on Plaintiffs’ Motion in Limine. (Doc. No. 155).
Solar Mosaic opposes the motion. (Doc. No. 162). As explained below, the motion is denied.
I. Background
Plaintiffs Jerard Brown and Elizabeth Cardona bring this lawsuit alleging violations of
the Fair Credit Reporting Act by Defendants. Defendant Vivint Solar, Inc. is the parent company
of Defendant Vivint Solar Developer, LLC (collectively referred to as “Vivint”), and they sell
solar panels. Defendant Solar Mosaic, Inc. (“Mosaic”) is a financing company that finances
solar energy systems.
Vivint’s door-to-door salesmen go to potential customers’ houses to attempt to sell Vivint’s
solar panels. These salesmen have iPads with them, on which a potential customer can access
Mosaic’s online credit application to apply for financing for the purchase of Vivant’s solar panels.
Plaintiffs contend that Vivint’s salesmen came to their houses and completed Mosaic’s online credit
application in Plaintiffs’ names without Plaintiffs’ knowledge or consent. Thus, Plaintiffs contend
that all three defendants acted together through Vivint’s door-to-door salesmen to obtain Plaintiffs’
credit reports under false pretenses and without any permissible purpose or authorization.
II. Plaintiffs’ Motion in Limine
Plaintiffs move to exclude Mosaic’s newly disclosed spreadsheet containing a summary of
credit application data.1 Specifically, the spreadsheet shows credit applications submitted by Vivint
on behalf of its customers in Florida during 2016 and 2017. (Doc. No. 156-2). The purpose of this
spreadsheet is to show that in Florida during 2016 and 2017, Vivint submitted 11,089 credit
applications on behalf of its customers.2 Mosaic wants this information admitted into evidence
because Mosaic contends that less than 100 of these customers complained of fraud in connection
with these credit applications.
Plaintiffs move to exclude this evidence on two bases: (1) Mosaic has not met the
admissibility requirements of Federal Rule of Evidence 1006; and (2) the spreadsheet was not timely
disclosed, so it should not be admissible, pursuant to Federal Rule of Civil Procedure 37(c)(1). As
explained below, the Court rejects both arguments.
A. Federal Rule of Evidence 1006
Plaintiffs move to exclude the spreadsheet, because Mosaic has not met the admissibility
requirements of Federal Rule of Evidence 1006. Rule 1006 provides the following:
The proponent may use a summary, chart, or calculation to prove
the content of voluminous writings, recordings, or photographs that
cannot be conveniently examined in court. The proponent must
make the originals or duplicates available for examination or
copying, or both, by other parties at a reasonable time and place.
And the court may order the proponent to produce them in court.
1 Plaintiffs and Mosaic also addressed this issue in Doc. Nos. 156 and 167. The Court has
considered the briefing in those documents on this issue.
2 Mosaic contends that after accounting for duplicate credit applications, the 11,089 credit
applications listed on the spreadsheet were submitted by 10,273 individuals.
F.R.E. 1006. Plaintiffs argue that because Mosaic has not made the underlying data from which the
spreadsheet was made available for review by Plaintiffs, the Court should not allow this summary
document to be admitted into evidence.
Mosaic responds that the spreadsheet is not a summary document, and therefore, Rule 1006
does not apply. Instead, Mosaic argues that the spreadsheet is a business record that is admissible
under Federal Rule of Evidence 803(6), and there is no underlying data to produce.
The business record hearsay exception contained in Rule 803(6) provides that a record of
an act or event is admissible if: (1) the record was made at or near the time by—or from
information transmitted by—someone with knowledge; (2) the record was kept in the course of a
regularly conducted activity of the business; (3) making the record was a regular practice of that
activity; (4) all of these conditions are shown by the testimony of a qualified witness; and (5) the
opponent does not show that the source of information or the method or circumstances of
preparation indicate a lack of trustworthiness. F.R.E. 803(6). Mosaic has submitted the
declaration of Alexander Hughes, a Data Scientist at Mosaic, to support its contention that the
spreadsheet is an admissible business record. (Doc. No. 156-1).
In his declaration, Hughes states the following: (1) Mosaic uses a cloud-based data
warehouse product called Redshift; (2) Mosaic uses the Redshift database in its regular course of
business and stores data related to credit applications as a regular business practice; (3) every
time Vivint representatives electronically submitted a credit application to Mosaic, Mosaic
would make its credit decision, and all of the information from the application (along with
Mosaic’s decision) was automatically transmitted in real time to the Redshift database; (4) the
Redshift database stores data related to credit applications submitted by various solar energy
vendors across many states during many years; (5) Mosaic can view subsets of the voluminous
data contained in the Redshift database by writing a computer command (i.e., a script) to view
the desired data subset; and (6) on February 28, 2020, Hughes wrote a script in the Redshift
database to produce the subset of data contained in the proffered spreadsheet (i.e., all credit
applications submitted by Vivint from consumers in Florida from January 1, 2016 though
December 31, 2017). This declaration supports Mosaic’s contention that the spreadsheet meets
the first four requirements of a business record.
The fifth requirement is that Plaintiffs do not show that the source of information or the
method or circumstances of preparation indicate a lack of trustworthiness. Plaintiffs contend that
because Mosaic will not allow discovery into the underlying credit applications, Plaintiffs cannot
be assured of the data’s trustworthiness. Plaintiffs’ argument is based on their unyielding belief
that the spreadsheet is a summary that entitles them to conduct discovery into the underlying
credit applications. However, this Court finds that the spreadsheet is not a summary.
In United States v. Warner, 638 Fed. Appx. 961 (11th Cir. 2016), one of the issues before
the court was whether to evaluate the admissibility of two spreadsheets as business records or
summary documents. The spreadsheets summarized the fraudulent tax returns allegedly
submitted by the defendant. See id. at 962. The court found that that the spreadsheets were
business records, stating the following:
“Rule 803(6) requires that both the underlying records and the report
summarizing those records be prepared and maintained for business
purposes in the ordinary course of business and not for purposes of
litigation.” . . . “[T]he touchstone of admissibility under [Rule
803(6)] is reliability, and a trial judge has broad discretion to
determine the admissibility of such evidence.”
Computer generated business records are admissible under the
following circumstances: “(1) [t]he records must be kept pursuant to
some routine procedure designed to assure their accuracy, (2) they
must be created for motives that would tend to assure accuracy
(preparation for litigation, for example, is not such a motive), and
(3) they must not themselves be mere accumulations of hearsay or
uninformed opinion.”
* * *
[This case is similar to] United States v. Fujii, 301 F.3d 535, 539
(7th Cir.2002), [as] . . . the records in Fujii were “electronically
stored information and the summary was simply a printout of that
information.” In Fujii, the District Court admitted airline check-in
and reservation records and flight manifests that were kept in the
ordinary course of business and printed at the government's
request. The Seventh Circuit held that “[c]omputer data compiled
and presented in computer printouts prepared specifically for trial is
admissible under Rule 803(6), even though the printouts themselves
are not kept in the ordinary course of business.” The [Fujii] court
reasoned that “because the information was printed out at the request
of the [government] does not deprive the printouts of its business-
record character.”
Warner, 638 Fed. Appx. at 963-64 (internal citations omitted).
Likewise, in the instant case, the records at issue are “kept pursuant to some routine
procedure designed to assure their accuracy,” they are “created [based on] motives that would
tend to assure accuracy,” and they are not “mere accumulations of hearsay or
uninformed opinion.” See id. at 963. The Court finds that the spreadsheet is a trustworthy
document.
Plaintiffs argue that the underlying data reported in the spreadsheet is hearsay, because it
comes from the customers’ statements in their credit applications. Therefore, Plaintiffs contend
that Mosaic’s spreadsheet based on that data contains inadmissible hearsay. However, Mosaic is
not using the spreadsheet to prove the truth of any matter asserted therein; it is using the
spreadsheet to prove the number of credit applications submitted by Vivint customers in Florida
in 2016 and 2017. Accordingly, the Court finds that the spreadsheet is an admissible business
record.
B. Federal Rule of Civil Procedure 37(c)(1)
Plaintiffs also argue that the spreadsheet should be excluded pursuant to Federal Rule of Civil
Procedure 37(c)(1), because it was not timely disclosed. Rule 37(c)(1) provides:
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.
Fed. R. Civ. P. 37(c)(1).
Mosaic responds that the late disclosure of the spreadsheet was an inadvertent oversight, and
once it realized its mistake, Mosaic produced the spreadsheet. Therefore, Mosaic argues that the
sanction of exclusion of this evidence is too harsh a sanction for the late disclosure.
This Court is guided by the following considerations:
The discovery process is designed “to avoid surprise and
minimize prejudice.” No party can use information after failing to
provide it under Rule 26, “unless the failure was substantially
justified or is harmless.” The non-disclosing party bears the burden
of showing its failure to disclose was substantially justified or
harmless. And the Court enjoys “broad discretion in determining
whether a violation is justified or harmless.” To determine whether
a violation was justified or harmless, courts have found the
following factors helpful: “(1) 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.”
Knowles v. Inzi Controls Alabama, Inc., 2019 WL 4551609, at *3 (M.D. Ala. Sept. 19,
2019)(internal citations omitted).
This evidence consists solely of the number of credit applications submitted in Florida
through Vivint in 2016 and 2017. Mosaic contends that Plaintiffs never sought discovery on this
particular issue, and Mosaic’s failure to provide it sooner was an inadvertent oversight. Mosaic
argues that any surprise regarding the number of credit applications can be cured by allowing
Plaintiffs to depose Hughes prior to trial. This evidence is important to Mosaic’s defense that the
percentage of credit applications in which fraud was alleged is relatively small. These
considerations favor admissibility.
Plaintiffs also argue that they would be prejudiced, because Mosaic has not allowed
discovery into credit applications submitted by other solar power installers during the same
period. Plaintiffs contend that such discovery is necessary in order to put the spreadsheet
evidence in context and may show that the credit inquiry-to-installation rate was far lower for
Vivant than for other solar power installers. The Court rejects these arguments.
Discovery into credit applications submitted by other solar power installers during the
same period is not relevant to the issues in this case. Even if such discovery revealed that the
credit inquiry-to-installation rate was far lower for Vivant than for other solar power installers,
there are many variables that affect whether someone chooses to purchase solar panels through
Vivint and finance through Mosaic. For example, a consumer may choose to buy solar panels
from another supplier, may choose to pay cash or lease the panels rather than finance them, or
may simply choose not to buy the solar panels for many reasons other than the credit application
being fraudulently submitted. Accordingly, the Court denies Plaintiffs’ request for exclusion of
the spreadsheet under Rule 37(c)(1), as Mosaic’s late disclosure was harmless, any surprise can
be cured by deposing Hughes, and Plaintiffs are not otherwise prejudiced.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1) Plaintiffs’ Motion in Limine (Doc. No. 155) is DENIED.
(2) Plaintiffs may depose Hughes within 35 days of this order on the issues of
creation of the spreadsheet and storage of the credit application data in the Redshift database.
The Court encourages the parties to work together to complete Hughes’ deposition prior to the
June 2, 2020 pretrial conference in this case.
DONE AND ORDERED at Tampa, Florida, this 6th day of May, 2020.
ape, Cel,
wes
SUSAN C. BUCKLEW
United States District Judge
Copies to: Counsel of Record