Second Circ. Late submission of critical evidence in a TCPA / debt collection case


We have an uplifting story for you today, TCPAWorld! In Foster v. Nat’l Recovery Agency, No. 17-CV-6-LJV-HKS, 2021 US Dist. LEXIS 176717 (WDNY September 16, 2021), plaintiff Harry Foster sued the defendant National Recovery Agency (“NRA”) for alleged violations of the TCPA and the Fair Debt Collection Practices Act. In October 2019, the plaintiff requested summary judgment. Later in March 2020, the NRA sought summary judgment and relied on a consent record – an intake form from NRA’s client, Eastern Niagara Radiology – to establish its summary judgment argument.

Well, it turns out that the NRA failed to produce this super critical / potentially defining document until after the discovery was closed. Which is not great. The plaintiff then requested that the admission form be struck in May 2020. The magistrate assigned to the case then issued a decision and order dismissing the petition to strike and reopen the discovery, at the expense of the NRA. , “for the limited purpose of authorizing [Foster] To . . . inquire about all relevant circumstances concerning or relating to the »admission form. The trial judge also “put an end without prejudice” to the counterclaims for summary judgment.

In his motion to strike the admission form, the plaintiff claimed that he did not see the admission form until the NRA requested summary judgment. Nevertheless, after the issuance of the D&O, the plaintiff’s lawyer realized (suddenly) that he had received the admission form for the first time in an email on August 12, 2019, three days after the closing discovery but more than two months before the plaintiff seeks summary judgment. Nonetheless, because the admission form was leaked after the discovery deadline expired, the plaintiff challenged the trial judge’s ruling and argued that the NRA should be barred from using it. The Western District of New York, however, disagreed. The Court explained that the exclusion of the evidence is a very drastic remedy which was not necessary in this circumstance, especially because the plaintiff’s lawyer in fact had the form a few months before requesting a summary judgment. Thus, the Court confirmed the decision of the magistrate rejecting the strike request.

For its part, the NRA argued that it should not be responsible for the costs of the reopened discovery. The court had a few choice words for the defendant, and was clearly not persuaded by their arguments. Specifically, the court said the NRA was still responsible for not disclosing the admission record until after the discovery had closed. The Court also noted that, although the plaintiff’s lawyer should have realized that he received the admission dossier in August 2019, the NRA only informed the plaintiff’s lawyer of the error. in April 2021 – after both parties requested summary judgment, the trial judge issued his decision and order, and the plaintiff objected. RNA also never provided any reason why the admission form was not disclosed before the discovery period expired and after the document was repeatedly requested by the applicant. The court then upheld the magistrate’s ruling that the NRA should bear all costs of the reopened discovery.

So, moral of the story: produce your documents on time and read all of your emails to make sure you don’t miss out on large productions of potentially critical documents.

© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume XI, number 265

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