Opinion
No. 3:18-cv-00749
06-24-2020
GLOBAL FORCE ENTERTAINMENT, INC. and Jeffrey Jarrett, Plaintiffs, v. ANTHEM WRESTLING EXHIBITIONS, LLC, Defendant.
Hayley H. Baker, Miller Legal Partners PLLC, Brentwood, TN, Nicholas R. Valenti, Samuel F. Miller, Sara R. Ellis, Miller Legal Partners PLLC, Nashville, TN, for Plaintiffs. Ashleigh D. Karnell, Paige Waldrop Mills, Ryan Allan Lee, Bass, Berry & Sims, Nashville, TN, for Defendant.
Hayley H. Baker, Miller Legal Partners PLLC, Brentwood, TN, Nicholas R. Valenti, Samuel F. Miller, Sara R. Ellis, Miller Legal Partners PLLC, Nashville, TN, for Plaintiffs.
Ashleigh D. Karnell, Paige Waldrop Mills, Ryan Allan Lee, Bass, Berry & Sims, Nashville, TN, for Defendant.
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
In accordance with the Scheduling Order controlling this case (Doc. No. 30), the parties filed their witness lists on June 12, 2020, two and a half weeks before the trial that is scheduled to begin on June 29, 2020. Karen Jarrett, the wife of Plaintiff Jeffrey Jarrett, is listed as a "may call witness" (Doc. No. 181-1) who, if called, would "testify as to Anthem's representations regarding, at least, the Merger and Mr. Nordholm's statements and actions directed to the Merger and Term Sheet." (Doc. No. 192 at 1).
Plaintiffs' June 12, 2020 witness list is the first time that Mrs. Jarrett has been listed as a potential witness in this case. She was not identified in Plaintiffs' initial disclosures (or Defendant's for that matter) (Doc. No. 201, Exhs. A & B); she was not identified in response to Defendant's interrogatories that requested the names of "all persons who have relevant knowledge to the claims made in your Amended Complaint" (id. at Exh. D); and Plaintiffs did not supplement either their initial disclosures or their interrogatory responses to include Mrs. Jarrett as a potential witness at trial. In fact, she was not even identified when the parties exchanged preliminary witnesses lists just last month. (Id. Exh. E).
Because Plaintiffs failed to identify Mrs. Jarrett as a potential witness, it is hardly surprising that she was not deposed by Defendant. It is equally unsurprising that Defendant has filed a Motion in Limine (Doc. No. 201) seeking to preclude her from testifying at trial because of Plaintiffs' failure to comply with Rule 26 of the Federal Rules of Civil Procedure. Plaintiffs have filed a response in opposition to that Motion (Doc. No. 207).
I.
Rule 26 provides, in relevant part, that, unless otherwise excused, "a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.]" Fed. R. Civ. P. 26(a)(1). The disclosure obligation is a continuing one:
A party who has made a disclosure under Rule 26(a) – or who has responded to an interrogatory, request for production, or request for admission – must supplement or correct its disclosure or response:
(A) in a timely manner 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 otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
Here, Plaintiffs have wholly failed to comply with the disclosure requirement of Rule 26 as it relates to Mrs. Jarrett. As noted, she was not named in the initial disclosures, Plaintiffs' answers to interrogatories, or even in the preliminary witness list. Instead, she was named as a potential witness a mere seventeen days before trial and some sixth months after discovery closed. Plaintiffs' attempt to rectify their glaring Rule 26 omission by listing Mrs. Jarrett on their witness list is untimely under any reading of the rules. See, Abrams v. Nucor Steel Marion, Inc., 694 F. App'x 974, 982 (6th Cir. 2017) (affirming exclusion of witnesses who were identified only a month before trial and after discovery had closed); Abriq v. Metro. Gov't of Nashville & Davidson Cty., No. 3:17-0690, 2018 WL 4561247, at *4 (M.D. Tenn. July 27, 2018) (citation omitted) ("If a party is allowed to withhold the supplementation of its disclosures until after fact discovery is closed, ‘the purpose of the Rule is effectively frustrated because the opposing party is denied the opportunity to conduct discovery on the supplemented responses.’ ").
Plaintiffs' failure to identify Mrs. Jarrett as a trial witness until a little more than two weeks before trial also violates this Court's Local Rules. Specifically, Local Rule 39 "expands the duty to supplement imposed by" Rule 26(e) by providing:
(e) Supplementation of Discovery Responses. Unless provided otherwise in a pretrial or other order, discovery responses must be supplemented no later than thirty (30) days before trial. Failure to timely supplement precludes the proffer at trial of any evidence within the scope of the interrogatories or other responses that was not previously brought to the attention of opposing counsel, absent Court approval. A violation of this Rule, which expands the duty to supplement imposed by Fed.R.Civ.P. 26(e), may also result in the imposition of other sanctions, including taxing of costs to the culpable party for any delays caused.
L.R. 39.01(e).
Plaintiffs reliance on Rule 26(e)'s "has not otherwise been made known" language to absolve themselves of their failure to identify Mrs. Jarrett as a witness is misplaced. Rule 26(a) imposed on them a specific affirmative duty to identify at the outset the names of individuals likely to have "discoverable information," and Local Rule 39.01 required them to supplement their discovery response to the request for the names of "all persons who have relevant knowledge to the claims." Mrs. Jarrett certainly fits that category representations," and "Nordholm's statements and actions directed to the Merger and Term Sheet." (Doc. No. 192 at 1). These are issues at the very core of this lawsuit. The failure to initially identify Mrs. Jarrett as a witness with knowledge, or to timely supplement the disclosures to include her, smacks of gamesmanship. See Agence France Presse v. Morel, 293 F.R.D. 682, 683 (S.D.N.Y. 2013) ("The obligations imposed by Federal Rule of Civil Procedure 26 are designed to prevent parties from ‘sandbagging’ their adversaries.").
Furthermore, "[w]hile discovery is, by necessity, an iterative process, Plaintiff[s'] interpretation of the ‘otherwise made known’ phrase has the potential to convert the Rule 26(e) supplementation requirement into a ‘whack-a-mole’ game," Poitra v. School District 1, County of Denver, 311 F.R.D. 659, 667 (D. Colo. 2015), whereby any individual whose name is mentioned in a deposition or whose name appears in any documents produced can be a witness at trial, so long as his or her name appears on the trial witness list. In this regard, Plaintiffs note that Mrs. Jarrett was mentioned in six of the eight depositions that were taken, and her name is listed in many documents. According to Plaintiffs, this is more than enough for her to be called as a witness because the Advisory Committee Notes state that "[t]here is ... no obligation to provide supplemental or corrective information that has been otherwise made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition[.]" Fed. R. Civ. P. 26(e) advisory committee notes.
It is one thing to be mentioned in a deposition; quite another to be identified as a witness:
The mere identification of a witness during discovery is insufficient to relieve a party of its duty to supplement its Rule 26(a)(1)(A) initial disclosures. Rather, the identification of the witness during discovery must have been sufficient to
make clear not only that the witness existed and had information, but also that the party intended to use that witness to support its claims or defenses.
Diamond Resorts Int'l, Inc. v. Aaronson, No. 617CV1394ORL37DCI, 2019 WL 1974833, at *2 (M.D. Fla. Mar. 13, 2019) (citations omitted) (emphasis added). This is because, "[t]he purpose of the witness identification requirement of Rule 26(a) ‘is to alert an opposing party of the need to take discovery of the named witness,’ " and hence, "to satisfy Rule 26, parties must make an unequivocal statement that they may rely upon an individual on a motion or at trial." Coene v. 3M Co., 303 F.R.D. 32, 47 (W.D.N.Y. 2014) (citation omitted); see also Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 72 (E.D.N.Y. 2012) ("[T]he mere mention of a name in a deposition or interrogatory response is insufficient to satisfy Rule 26(a)(1)(A)(i).").
II.
Where, as here, a party fails to comply with Rule 26, "the party is not allowed to use that information or witness to supply evidence ... at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Five factors are used in determining whether an omitted or late disclosure is "substantially justified" or "harmless":
"(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 nondisclosing party's explanation for its failure to disclose the evidence."
Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (quoting Russell v. Absolute Collection Serve., Inc., 763 F.3d 385, 396–97 (4th Cir. 2014) ). Those factors collectively weigh in favor of excluding Mrs. Jarrett as a witness at trial.
First, listing Mrs. Jarrett as a witness undoubtedly was a surprise to Defendant because she was not mentioned as a possible trial witness, even as late as one month ago. It was not incumbent upon Defendant to undertake the time an expense necessary to depose the universe of individuals who were named during depositions or in documents.
Second and third, because of the lateness in disclosure and that the trial starts in three business days, Defendant will not have an opportunity to depose her – or to seek out rebuttal evidence should it be necessary – absent a continuance of the trial, which was scheduled more than eighteen months ago. On this score, the Court flatly rejects without further comment Plaintiffs' suggestion that Defendant does not need to take Mrs. Jarrett's deposition because Defendant can "speak[ ] to its own executives ..., and review[ ] its own documents to determine the scope of Mrs. Jarrett's relevant knowledge." (Doc. No. 207 at 5). Plaintiffs' additional argument that a deposition is unnecessary because they have provided, at the Court's request, a two-sentence "summary of Mrs. Jarrett's expected testimony," (id. ) requires even less comment.
Fourth, Plaintiffs themselves state that "Mrs. Jarrett's testimony is important" (id. ), but this "cuts both ways" because "[t]he more important the proof, the greater the effect of preclusion, but also the greater the harm in tardy disclosure." EQT Prod. Co. v. Magnum Hunter Prod., Inc., No. 5:16-CV-150-JMH-REW, 2017 WL 2295906, at *5 (E.D. Ky. May 25, 2017) (collecting cases); see also, Etheridge v. E.I. DuPont De Nemours & Co., Inc., No. 14-CV-2443-SHL-cgc, 2015 WL 12516227, at *3 (W.D. Tenn. Oct. 14, 2015) ("[B]ecause this evidence is so important to Plaintiff, her explanation for her failure to abide by ... the Federal Rules of Civil Procedure becomes even less satisfactory."). "Regardless, importance ‘cannot, by itself, save improperly disclosed evidence from being found unjustified or non-harmless.’ " Id. (quoting Samsung Elecs. Co., Ltd. v. Nvidia Corp., 314 F.R.D. 190, 197 n.6 (E.D. Va. 2016) ).
Fifth and finally, Plaintiffs have wholly failed to offer any explanation for their failure to identify Mrs. Jarrett as a witness, other than to claim that they had no duty to do so. Indeed, they do not even entertain the possibility that they may have erred. If, as Plaintiffs claim, they "had no reason to think that Defendant would not be well aware of both Mrs. Jarrett's existence and expected testimony" (Doc. No. 207 at 5), then it should have been obvious to Plaintiff that Mrs. Jarrett was required to be disclosed under Rule 26 because she was "an individual likely to have discoverable information[.]" Fed. R. Civ. P. 26(a). It should have been equally obvious that Plaintiffs were required to timely supplement their discovery responses to include Mrs. Jarrett as required by both the Federal Rules of Civil Procedure, and this Court's Local Rules.
III.
Based on the foregoing, "Defendant's Motion in Limine to Exclude Trial Testimony From Mrs. Jarrett" (Doc. No. 201) is GRANTED because she was not disclosed in a timely fashion as required by Rule 26 and this Court's Local Rules.
IT IS SO ORDERED.