The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHARON B. IKERD CIVIL ACTION
VERSUS No. 23-890
c/w 23-1330
REF: 23-890
BERKSHIRE HATHAWAY HOMESTATE SECTION I
INSURANCE COMPANY ET AL.
ORDER AND REASONS
Before the Court is an opposed motion filed by Sharon B. Ikerd (“plaintiff”) to
exclude surveillance videos captured by investigators hired by Bobby Dillon
(“Dillon”), L Dillon Tree Harvesting, LLC, and Berkshire Hathaway Homestate
Insurance Company (collectively, “defendants”).1 For the reasons set forth below, the
Court denies the motion.
I. BACKGROUND
The present action concerns an automobile collision. At the time of the
accident, plaintiff was driving a school bus and had stopped to allow children to exit
the bus.2 Plaintiff alleges Dillon, who was driving a tractor trailer carrying a load of
logs, collided with her school bus.3
In her complaint, plaintiff complains of “severe, painful, debilitating, and
permanently disabling injuries[,]” as well as “severe physical pain and suffering” and
“mental anguish” caused by the accident.4 She alleges that her damages were caused
1 R. Doc. No. 63 (plaintiff’s motion); R. Doc. No. 77 (defendants’ response).
2 R. Doc. No. 1-1, at 12.
3 Id.
4 Id. at 13.
by “the gross and wanton negligence, carelessness, and recklessness” of Dillon.5 The
Court recently granted defendants’ motion for partial summary judgment with
respect to plaintiff’s claim for future medical expenses.6
Plaintiff now moves to exclude surveillance footage that she argues was not
disclosed until “long after the close of discovery.”7 Plaintiff argues that there is no
justification for defendant’s untimely disclosure.8 In response, defendants argue that
the parties had agreed to continue discovery pursuant to an order by this Court
stating that “[t]he parties may extend any deadlines other than the trial, pretrial
conference, and dispositive motions deadline by consent and without leave of Court.”9
Defendants argue that this agreement is evidenced by plaintiff’s continued discovery
after the deadline.10 If the disclosure is found to be untimely, defendants argue that
the surveillance videos are still admissible because any untimeliness was
substantially justified and harmless.11
II. STANDARD OF LAW
Federal Rule of Civil Procedure 26(a) mandates that a party initially disclose
the documents that party may use to support its claims or defenses. Rule 26(e)
requires initial disclosures, along with any discovery response, to be supplemented or
corrected “in a timely manner if the party learns that in some material respect the
5 Id. at 12.
6 R. Doc. No. 79.
7 R. Doc. No. 63-1, at 2.
8 Id. at 3.
9 R. Doc. No. 77, at 4 (defendants’ argument); R. Doc. No. 29 (Court’s order).
10 R. Doc. No. 77, at 4–6.
11 Id. at 10.
disclosure or response is incomplete or incorrect.” Rule 37(c) states 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.”
“It is within the Court's discretion to determine whether a failure to disclose is
justified or harmless.” Innovention Toys, LLC v. MGA Ent., Inc., No. CV 07-6510,
2010 WL 11538622, at *2 (E.D. La. Sept. 14, 2010) (Feldman, J.). “In determining
whether the failure to disclose was justified or harmless, the Court considers such
factors as: (1) the explanation for the failure to disclose; (2) the importance of the
evidence; (3) the potential prejudice to the opposing party of admitting the evidence;
and (4) the possibility of curing such prejudice by granting a continuance.” Id. (citing
Betzel v. State Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007)); see also Bailey v. Bd.
of Comm’rs of La. Stadium & Exposition Dist., No. CV 18-5888, 2020 WL 6947861, at
*3 (E.D. La. Mar. 2, 2020) (Brown, J.).
III. ANALYSIS
As mentioned, plaintiff alleges that defendants failed to timely disclose
surveillance videos and therefore the videos should be excluded at trial.12 In her
motion, plaintiff does not identify any specific prejudice caused by the alleged
untimely disclosure. In response, defendants argue that the parties were continuing
to conduct discovery based on a mutual agreement, and the videos were timely
12 R. Doc. No. 63-1, at 2.
supplemented.13 Additionally, defendants argue that, even if the videos were
untimely, the untimely disclosure was harmless and substantially justified.14 Neither
party submits evidence expressly supporting the parties’ agreement to continue
discovery, although both parties continued discovery after the deadline.15
Even assuming that defendants’ disclosure was untimely, the Court finds that
the untimeliness was harmless. Defendants explained that the delay was justified
because plaintiff was on summer break until August and therefore not working as a
bus driver which prohibited defendants from obtaining footage.16 Defendants also
explain that it took additional time to record, compile, and transmit the footage after
plaintiff returned to work in August.17 Defendants further note that plaintiff still
received all the videos at least 80 days prior to trial.18
While defendants do not explicitly argue that these videos are important to
their defense, plaintiff has not demonstrated any prejudice that has occurred as a
result of the delay in receiving the videos. Plaintiff has not sought a continuance to
remedy any potential prejudice caused by the allegedly late disclosure. Furthermore,
the Court does not find a continuance necessary given the lack of prejudice to plaintiff
and the 80 days that she will have had to review the footage in preparation for trial.
Therefore, plaintiff’s motion to exclude should be denied.
13 R. Doc. No. 77, at 7.
14 Id. at 9.
15 R. Doc. No. 77, at 8; R. Doc. No. 75, at 4.
16 R. Doc. No. 77, at 11.
17 Id. at 11.
18 Id. at 10.
II. CONCLUSION
Accordingly,
IT IS ORDERED that plaintiff's motion to exclude the surveillance footage is
DENIED.
New Orleans, Louisiana, December 7, 2023.
(ANCE M. AFRICK
UNITED/STATES DISTRICT JUDGE