The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PATRICK MAHONEY,
Plaintiff,
v. Case No. 8:23-cv-534-MSS-AAS
CITY OF BRADENTON,
Defendant.
___________________________________/
ORDER
Defendant City of Bradenton (“Bradenton”) moves to strike multiple
documents and two arguments from Plaintiff Patrick Mahoney’s response
(Docs. 57–59) to Bradenton’s Motion for Summary Judgment (Doc. 54). (Doc.
62). Mr. Mahoney responds in opposition. (Doc. 67).
I. BACKGROUND
Mr. Mahoney is a former police officer with the Bradenton Police
Department. (Doc. 14, ¶ 10). In his Amended Complaint, he alleges Bradenton
Police Chief Melanie Bevan and others employed by Bradenton retaliated
against him after Mr. Mahoney submitted an affidavit to Bradenton Mayor
Gene Brown detailing “unlawful activities that Chief Bevan was engaging in.”
(Doc. 14, ¶¶ 20, 24, 25). Mr. Mahoney brings causes of action against
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Bradenton for violating 42 U.S.C. § 1983 and Florida’s Whistleblower Act in
terminating him in retaliation for his affidavit against Chief Bevan. (Doc. 14).
Bradenton challenges the following exhibits attached to Mr. Mahoney’s
response to Bradenton’s motion for summary judgment: (1) a transcript of the
June 15, 2022 Bradenton City Council meeting (Doc. 58-1); (2) a transcript of
the August 24, 2022 Bradenton City Council Meeting (Doc. 58-2); (3) text
messages between Bradenton Police Chief Melanie Bevan and City of North
Port Police Chief Todd Garrison (Doc. 58-3); (4) Bradenton Police Department
(BPD) Firearms Qualifications Report 202 (Doc. 58-5); (5) Equipment Issued
Record for Chris Herron (Doc 58-6); (6) BPD Firearms Qualifications Report
2020 (Doc. 58-7); and (7) Florida Department of Law Enforcement (FDLE) Case
No. 50532 (Doc. 58-10). (Doc. 62, p. 1). Bradenton also requests the court strike
Mr. Mahoney’s introduction of “new” comparator Ross Johnson and similarly
strike the “new” claim of Monell liability in Mr. Mahoney’s response to the
motion for summary judgment. (Id. at pp. 9–18).
II. ANALYSIS
Parties are required to provide full and timely disclosures under Fed. R.
Civ. P. 26(a)(1)(A)(i). Parties are further required to supplement disclosures “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
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otherwise been made known to the other parties during the discovery process
or in writing[.]” Fed. R. Civ. P. 26(e)(1)(A). If a party fails to comply with Fed.
R. Civ. P. 26, “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).
“A district court has broad discretion in determining whether a party’s
failure to disclose discovery materials is either substantially justified or
harmless under Rule 37(c)(1).” Bielawski v. Davis Roberts Boeller & Rife, P.A.,
No. 218CV758FTM29MRM, 2020 WL 2473397, at *3 (M.D. Fla. May 13, 2020)
(citation omitted). “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 Fed. App’x 821, 824 (11th Cir. 2009) (citation omitted).
“When determining whether a failure was substantially justified or harmless,
reviewing courts consider ‘the non-disclosing party’s explanation for its failure
to disclose, the importance of the information, and any prejudice to the
opposing party if the information had been admitted.’” Bielawski, 2020 WL
2473397, at *3 (citing Lips v. City of Hollywood, 350 Fed. App’x 328, 340 (11th
Cir. 2009)). When there is no prejudice to the party entitled to receive the
disclosure, the failure to disclose is harmless. See Cinclips, LLC v. Z Keepers,
LLC, No. 8:16-CV-1067-T-23JSS, 2017 WL 2869532, at *3 (M.D. Fla. July 5,
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2017).
A. Transcripts of City Council Meetings
Bradenton argues the June 15, 2022 and August 24, 2022 transcripts of
the Bradenton City Council meetings (Docs. 58-1, 58-2) should be stricken,
because Mr. Mahoney did not produce the transcripts during discovery. (Doc.
62, pp. 2–7). In Mr. Mahoney’s first set of interrogatories, he requested
Bradenton identify Bradenton City Council meetings where certain relevant
topics were discussed. (Doc. 67-1, pp. 9, 11). Bradenton identified the June 15,
2022 and August 24, 2022 meeting dates. (Doc. 67-1, pp. 9, 12). In response to
Interrogatory 12, Bradenton objected on grounds that the interrogatory was
“unduly burdensome and improper as the information is equally available to
Plaintiff on the City Council’s publicly available website by review of City
Council minutes and of the City Council meeting videos on the City of
Bradenton Government Youtube channel.” (Doc. 67-1, p. 9). Mr. Mahoney hired
a transcriptionist to transcribe the Youtube videos “for the purpose of
streamlining the Court’s review of those meetings.” (Doc. 67, p. 7). Mr.
Mahoney admittedly did not produce the transcripts of Bradenton’s Youtube
videos.
Bradenton now argues the transcripts of Bradenton’s Youtube videos,
which Mr. Mahoney attached to his response to Bradenton’s motion for
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summary judgment (Docs. 58-1, 58-2), are prejudicial to Bradenton. (Doc. 62).
The cases Bradenton cites analyze harm when parties failing to disclose
relevant information had exclusive access to the information. See WBY, Inc. v.
DeKalb Cnty., Georgia, 766 F. App’x 852, 862–863 (11th Cir. 2019); Faulk v.
Volunteers of Am., 444 F. App’x 316, 319 (11th Cir. 2011). That is not the case
here. Bradenton cannot claim prejudicial harm from the contents of a Youtube
video they posted, identified as responsive to Mr. Mahoney through discovery,
and refused to either download or transcribe to produce to Mr. Mahoney
because doing so would be “unduly burdensome.” (Doc. 67-1, p. 9).
As Bradenton argues, “the whole purpose of Rule 26(a)(1) and (e)(1) is to
prevent surprise evidence.” (Doc. 62, p. 7). Bradenton should not have been
surprised Mr. Mahoney used information Bradenton identified to him. The
transcripts are harmless. See Bolden v. Rushing, No. 8:23-CV-531-SDM-LSG,
2025 WL 1827284, at *3 (M.D. Fla. July 1, 2025) (“Because the documents are
public records within the defendant’s control, this diminishes the argument
that their use at trial is harmful.”). Accordingly, Bradenton’s argument that
the transcripts should be stricken because they were not produced in discovery
fails.
B. Authentication and Foundation of Documents
Bradenton argues four exhibits (Docs. 58-1, 58-2, 58-3, 58-10) were not
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properly authenticated. (Doc. 62, pp. 7, 8). Mr. Mahoney points out the 2010
amendments to Fed. R. Civ. P. 56 removed the requirement for documents
relied on in summary judgment to be authenticated. (Doc. 67, p. 7).
“[A]uthentication of documents no longer is required at the summary judgment
stage.” Patterson v. City of Melbourne, 669 F. Supp. 3d 1204, 1217 (M.D. Fla.
2023) (quoting Higgens v. Trident Asset Mgmt., LLC, No. 16-24035-Civ-Scola,
2017 WL 7796085, at *2 (S.D. Fla. July 21, 2017)). Instead, “the inquiry is
whether the exhibit can be submitted in a form that will be admissible in
evidence.” Sanders v. Benjamin Moore & Co., No. 4:11-CV-0397-JEO, 2015 WL
1489855, * at 38 (N.D. Ala. Mar. 31, 2015) (quotation omitted). “[T]he objection
contemplated by the amended Rule is not that the material ‘has not’ been
submitted in admissible form, but that it ‘cannot’ be.” Abbott v. Elwood Staffing
Servs., Inc., 44 F. Supp. 3d 1125, 1134 (N.D. Ala. 2014).
Bradenton, focusing on the authentication, failed to object to the
admissibility of the four exhibits, as contemplated by Fed. R. Civ. P. 56(c)(2).
Mr. Mahoney nonetheless explains how each contested exhibit could be
admissible at trial. (Doc. 67, pp. 8, 9). The transcripts (Docs. 58-1, 58-2) and
the FDLE records (Doc. 58-10) could be admissible as public records or as
admissions of a party opponent. The text messages (Doc. 58-3) could be testified
to at trial. At the summary judgment stage, the threshold to show that
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evidence can be reduced to admissible form is low. See Patterson, 699 F. Supp.
3d at 1217. Bradenton’s argument that the four exhibits should be stricken for
lack of authentication fails.
Bradenton also argues seven exhibits (Docs. 58-1, 58-2, 58-4, 58-5, 58-6,
58-7, 58-10) lack a foundation. (Doc. 62, pp. 8, 9). Mr. Mahoney responds that
the exhibits are public records, which fall under the public records exception of
Fed. R. Evid. 803(8) and do not require a foundation. (Doc. 67, pp. 9, 10). Fed.
R. Evid. 803 allows for certain exceptions to the hearsay rule. Specifically, Fed.
R. Evid. 803(8) outlines the public records exception. A public record is
admissible when it is “[a] record or statement of a public office that sets out
factual findings from a legally authorized investigation, and the opponent does
not show that the source of information or other circumstances indicate a lack
of trustworthiness.” Carrizosa v. Chiquita Brands Int’l, Inc., 47 F.4th 1278,
1297 (11th Cir. 2022) (citing Fed. R. Evid. 803(8)) (quotations omitted). Public
records are a type of document “that does not require a foundation.” Id.
(quoting United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir.
1997)).
Three of the challenged exhibits are Bradenton’s employment records for
a specific individual (Docs. 58-5, 58-6, 58-7), two are transcripts made from
official Bradenton City Council meetings (Docs. 58-1, 58-2), one is a
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compilation of FDLE records (Doc. 58-10), and one is a deposition of a
Bradenton employee (Doc. 58-4). At the summary judgment stage, Mr.
Mahoney has met the low threshold for establishing admissibility of the
exhibits. The last exhibit Bradenton challenges is the deposition of Brenda
Lovett, where counsel for Bradenton was present. (Doc. 58-4). The undersigned
assumes Bradenton mistakenly included this exhibit. There would be no merit
to an argument that the transcript of the deposition at Doc. 58-4 lacks
foundation.
The undersigned finds Mr. Mahoney appropriately rebuts Bradenton’s
challenges to the admissibility of the exhibits. However, if this case continues
to trial, Mr. Mahoney may again need to address authentication and
foundation as required by the trial judge.
C. “New Comparator” Ross Johnson
Bradenton argues Mr. Mahoney attempts to assert a new comparator,
Ross Johnson, in his response to the motion for summary judgment. (Doc. 62,
p. 9). Bradenton’s argument is not that Mr. Johnson is mentioned for the first
time in Mr. Mahoney’s response. (Doc. 62, p. 13). Bradenton admits Mr.
Mahoney’s theories regarding Mr. Johnson stem from documents Bradenton
provided to Mr. Mahoney. (Id.). Instead, Bradenton argues Mr. Mahoney
should have supplemented an interrogatory response that listed similarly
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situated individuals who Mr. Mahoney believed were treated differently than
him. (Doc. 62, pp. 9–11).
Mr. Mahoney explains he did not mention Mr. Johnson in his response
to the summary judgment motion to establish him as a comparator and further
argues he does not need comparators to prove his claims. (Doc. 67, pp. 10–13).
Mr. Mahoney distinguishes the individuals listed in his interrogatory response
from Mr. Johnson. Mr. Mahoney included facts pertaining to Mr. Johnson for
the rebuttal purposes of demonstrating inconsistencies in Bradenton’s
proffered reason for Mr. Mahoney’s termination, not to prove any claims in his
amended complaint. (Id.). Mr. Mahoney avers he is not attempting to add Mr.
Johnson as a comparator. As such, there is no reason to strike any mention of
Mr. Johnson from Mr. Mahoney’s response to Bradenton’s motion for summary
judgment.
D. “New” Claim of Monell Liability
Bradenton argues Mr. Mahoney attempts to add a new claim for Monell
liability through his response to Bradenton’s motion for summary judgment.
(Doc. 62, pp. 13–20). In the amended complaint, Mr. Mahoney alleges Mayor
Gene Brown was involved in the investigations against Chief Bevan. (Doc 14,
pp. 4). After Bradenton filed a motion for a protective order to stop Mr.
Mahoney from deposing the mayor, Mr. Mahoney responded with numerous
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allegations regarding the mayor’s first-hand involvement with the “City’s pro-
Bevan policy.” (Doc. 41). Although the court granted the protective order, Mr.
Mahoney’s position on the issue was clear. (Doc. 42). Also in discovery, Mr.
Mahoney stated the mayor and Bradenton had oversight and direction over
Chief Bevan’s allegedly harmful actions. (Doc. 53-1, pp. 12-138).
The docket shows Mr. Mahoney has long attempted to develop facts for
a singular claim of Monell liability against Mayor Brown. This is not a new
argument. Bradenton’s contention that Mr. Mahoney’s claim of Monell liability
against the mayor is weak is an issue for summary judgment or trial, not a
basis for granting a motion to strike. Accordingly, striking any mention of the
mayor in Mr. Mahoney’s response to Bradenton’s motion for summary
judgment is not warranted.
Il. CONCLUSION
Bradenton’s Motion to Strike is DENIED.
ORDERED in Tampa, Florida on August 1, 2025.
Aranda. Are he Sarma.
AMANDA ARNOLD SANSONE
United States Magistrate Judge
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