United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Plaintiff's Motion in
Limine to Exclude Certain Witnesses from Trial, ECF No. 191.
The Plaintiff, Union Pacific Railroad Company (UP), seeks to
preclude Defendant, Colony National Insurance Company
(Colony), from offering trial testimony of Kenneth W.
Heathington, Thomas C. Jones, Timothy C. Gaarder, Grant L.
Davis, and Robert Pottroff, because Colony failed to disclose
their names in Colony's initial disclosures under
Fed.R.Civ.P. 26(a)(1)(A)(i). For the reasons discussed below,
the Motion will be granted as to Heathington and Pottroff,
and denied as to Jones, Gaarder, and Davis, with the
condition that Colony make these witnesses available to UP
for depositions no later than February 28, 2018, at
initial Rule 26 disclosures, served on April 10, 2015, Colony
listed the names, addresses, and telephone numbers of
individuals likely to have discoverable information.
Def.'s Initial Disclosures, ECF No. 193-1, Page ID
5941-43. Colony also listed: “All counsel for
plaintiffs and defendants in the underlying action styled
Betty Jay, et al. v. Union Pacific Railroad Company and
Donald Wilson, No. CJ-2008-343 (ln the District Court in
and for Rogers County, Oklahoma). (Subject: Claims,
discovery, evidence, liability, demands, exposure and
negotiations in that action).” Id., Page ID
to the Court's Fourth Amended Progression Order, ECF No.
154, all fact discovery, including depositions, was to be
completed on or before September 30, 2017, and each party was
to disclose to opposing counsel on or before December 1,
2017, the names, addresses, and telephone numbers of all
non-expert witnesses whom the party expected to present at
trial, or whom the party might call.
December 1, 2017, Colony filed its Disclosure of Non-Expert
Witnesses, ECF No. 173, listing, among others, the five
individuals who are the subject of UP's Motion in Limine.
Those individuals were not listed by name in Colony's
initial Rule 26 disclosures, nor in any supplementary
disclosures, nor in response to UP's interrogatories
requesting names of witnesses and the subject matter of their
UP's Brief in Support of its Motion in Limine, ECF No.
192, UP states that Jones, Gaarder, and Davis were among
plaintiffs' lawyers in the Rogers County, Oklahoma,
action (Underlying Action); Pottroff was among the
defendants' lawyers; more than eleven lawyers represented
the parties; and Heathington was an expert witness. Colony
does not deny these assertions. In its Brief in Opposition to
UP's Motion in Limine, ECF No. 202, Colony addresses only
the proposed testimony of Jones, Gaarder, and Davis,
plaintiffs' counsel in the Underlying Action, and states
that Colony will not call Pottroff and Heathington as
RULES OF PROCEDURE
[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
Fed. R. Civ. P. 26(a)(1)(A).
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
. . . .
Fed. R. Civ. P. 26(e).
If a party fails to provide information or identify a witness
as required by Rule 26(a) . . . the party is not allowed to
use that . . . witness . . . at trial, unless the failure was
substantially justified or is harmless. In addition to or
instead of this sanction, the court, on motion and after
giving an opportunity to be heard: (A) may order payment of