The opinion of the court was delivered by: Alan Kay United States Magistrate Judge
This matter is before the Court on remand from the United States Court of Appeals for the District of Columbia Circuit. See Flynn v. Dick Corp., 481 F.3d 824 (D.C. Cir. 2007). Per this Court's direction at the December 21, 2007 status conference, the parties submitted briefs outlining the actions they request that this Court take on remand. Accordingly the Court has before it Defendant Dick Corporation's Brief in Support of It's Position and the Action Requested of the Court  ("Def.'s Br."), Plaintiff Funds' Memorandum in Support of Their Position on Remand  ("Pl.'s Mem."), Defendant's Reply , and Plaintiff's Surreply .
In 1989, Defendant Dick Corporation, a Pennsylvania-based construction company, entered into an Independent Agreement ("IA") with the local affiliate of the International Union of Bricklayers and Allied Craftworkers ("BAC") in eastern Massachusetts, agreeing "to be bound by all the terms and conditions of the effective Collective Bargaining Agreement and any . . . successor agreements." Flynn, 481 F.3d at 826. In 2000, Dick Corporation entered into a similar IA with the local BAC affiliate in western Massachusetts. Id. at 827. The 2000 IA bound Dick Corporation to a Collective Bargaining Agreement ("CBA") executed in 1992 and to any successor CBA. Id. Eventually, the CBA referenced in the 1989 IA was succeeded by an August 2002 CBA, and a 2000 CBA tied to the 2000 IA was succeeded by a September 2002 CBA. Id. Both the August 2002 CBA and the September 2002 CBA contained a "traveling contractor's clause," which required "that a signatory employer with 'any work [covered by the CBA] to be performed outside of the geographic area' of the CBA and 'within the geographic area covered by an Agreement with another affiliate of [the BAC] ... abide by the full terms and conditions of the Agreement in effect in the job site area.'" Id.
On the basis of these traveling contractor's clauses, the Trustees of the Bricklayers and Trowel Trades International Pension Fund ("IPF" or "Fund"), a multi-employer employee benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, brought suit against the Dick Corporation to collect employee benefit contributions in connection with Dick Corporation's construction projects at two job sites in Florida. Id. at 826, 827. The Fund alleged that the traveling contractor clauses bound Dick Corporation to a Florida CBA, and that Dick Corporation violated the Florida CBA when it used non-union subcontractors on its construction projects in Florida. Id. at 827. In response, Dick Corporation challenged its liability under the Florida CBA. Id. at 826.
Following discovery, this Court granted Dick Corporation's motion for summary judgment, holding, in part, that there was not a valid Florida CBA in existence at Dick Corporation's Florida job sites that obligated Dick Corporation to pay employee benefits into the fund under the traveling contractor's clauses. Id. at 828 (citing Flynn v. Dick Corp., 384 F. Supp. 2d 189, 199-202 (D.D.C. 2005)). Specifically, this Court found that the documents the Fund submitted as the applicable Florida CBA was not an enforceable agreement because it lacked provisions on wages and contract duration. Id. Accordingly, this Court concluded that the Florida CBA was "not an agreement in effect (namely, a legally binding agreement), but merely provide[d] a framework for one." Flynn, 384 F. Supp. 2d at 200. The Court also found that summary judgment should be granted in favor of Dick Corporation because the Labor Management Relations Act ("LMRA") precluded the contributions that the Fund sought. Id. at 202.
Pursuant to Federal Rule of Civil Procedure 59(e), the Fund moved for reconsideration of the Court's finding that there was no valid CBA in effect at Dick Corporation's Florida job sites. (Pl.'s Mem. Supp. Mot. Reconsideration [45-2] at 2.) The Fund argued that the template Florida CBA, when read together with a declaration from Robert Blanco, Regional Director of BAC and President of Bricklayers Local 1 Florida, and exhibits attached thereto, established that an agreement was in effect in Florida. (Id.) Dick Corporation responded that the Blanco Declaration and its attachments "were not properly before the Court because Plaintiffs had withheld them from Dick during discovery despite Dick expressly requesting them from Plaintiffs." (Def.'s Opp'n to Pl.'s Mot. Reconsideration  at 4-5.) In granting the Fund's motion, this Court concluded that it had "erred when it found that evidence of the detailed wage scales and contribution rates necessary to complete the contract had not been submitted into the record" and rejected Dick Corporation's suggestion that it had initially ignored these documents as a discovery sanction. (Mem. Order of 11/15/05  at 6.) Accordingly, this Court vacated the grant of summary judgment in favor of Dick Corporation on the basis that a Florida CBA was not in effect. (Id.) However, this Court found that Dick Corporation was still entitled to summary judgment on the ground that the LMRA precluded the contributions that the fund sought. (Id. at 6-7.)
The Fund appealed. The Court of Appeals first reversed this Court's holding that the benefit contributions are prohibited under the LMRA. Flynn, 481 F.3d at 836. The Court of Appeals then remanded this Court's Rule 59(e) ruling to consider Dick Corporation's argument that this Court should have excluded the Blanco Declaration as a discovery sanction pursuant to Federal Rule of Civil Procedure 37(c)(1). Id. Finally, the Court of Appeals "remand[ed] for further proceedings consistent with this opinion the issues of the applicability of the Florida collective bargaining agreement at the Company's Florida jobsites and the appropriate award of damages." Id. Consistent with this mandate and following a status conference on December 21, 2007, this Court ordered the parties to submit additional briefing in support of the actions that they are asking this Court to take on remand.
A. Admissibility of the Blanco Declaration and Exhibits Thereto
Dick Corporation submits that the Blanco Declaration and the exhibits thereto are inadmissible, and should not have been considered by the Court in its November 15, 2005 Memorandum Order, because the Fund produced these documents for the first time in connection with their cross-motion for summary judgment. (Def.'s Brief  at 5-6.) As support for this position, Dick Corporation points to Federal Rule of Civil Procedure 37(c)(1), which provides, in part:
If 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.
FED. R. CIV. P. 37(c)(1). The burden is on the party resisting sanctions to demonstrate that its failure to provide information was either substantially justified or harmless. Norden v. Samper, 544 F. Supp. 2d 43, 50 (D.D.C. 2008).*fn1
The Court need not decide whether the Fund improperly failed to produce the Blanco Declaration and rate documents during discovery because the Court finds that any such withholding was harmless. After the Fund submitted these materials in support of its motion for summary judgment, Dick Corporation could have moved for additional discovery pursuant to Federal Rule of Civil Procedure 56(f). If Dick Corporation had so moved, it could have, for example, deposed Mr. Blanco, explored the authenticity of the documents attached to his declaration, and taken other discovery regarding whether there was a CBA in existence at Dick Corporation's Florida job sites. Even if the Fund's withholding of these documents was improper, the Rules afforded Dick Corporation an adequate opportunity to take discovery on the subjects contained therein ...