United States District Court, D. Nebraska
M. Bazis United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion to
Exclude Defendant's Previously Undisclosed Witnesses
(Filing No. 46). The motion will be granted, in
seeks an order excluding four of Defendant's potential
witnesses from testifying at trial. Plaintiff argues that
Defendant failed to timely disclose these witnesses in its
Federal Rule of Civil Procedure 26(a) disclosures.
Alternatively, Plaintiff requests that she be given leave to
depose these witnesses and identify any additional witnesses
needed to rebut Defendant's new witnesses' testimony.
contends that the four witnesses at issue were identified for
the first time in Defendant's March 21, 2019 Second
Supplemental Rule 26(a) disclosures. (Filing No.
46-4.) On the same day these Second Supplemental
disclosures were provided to Plaintiff, Defendant served its
proposed witness list for trial which identified these four
individuals as potential trial witnesses.
claims she will be prejudiced if these individuals are
allowed to testify at trial because the deposition deadline
has passed and, therefore, she no longer has the ability to
depose them. Plaintiff contends that if Defendant had timely
disclosed these individuals, she would have conducted
additional discovery to ascertain what specific knowledge
argues that Plaintiff will not be prejudiced because the
witnesses have been known to Plaintiff throughout this
litigation. Defendant represents that two of the witnesses
were supervised by Plaintiff while she worked for Defendant,
and another is Defendant's current employee with whom
Plaintiff worked directly. The fourth witness is an
Investigator with the Nebraska Equal Opportunity Commission
who interviewed Plaintiff regarding the allegations in
Plaintiff's Charge of Discrimination. Defendant also
points out that one of the witnesses was actually included in
Plaintiff's Rule 26(a) initial disclosures.
further contends that the fact that Plaintiff chose not to
depose any individuals identified in Defendant's initial
Rule 26(a) disclosures casts doubt upon Plaintiff's claim
that she would have deposed the witnesses at issue. However,
Defendant has no objection to Plaintiff deposing the
witnesses and has provided Plaintiff with the last known
contact information for these individuals.
Rule of Civil Procedure 26(a) requires that a party, without
waiting a discovery request, provide the name, address and
telephone number of each individual likely to have
discoverable 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). When a party
fails to provide information or identify a witness in
compliance with Rule 26(a), the court “has wide
discretion to fashion a remedy or sanction as appropriate for
the particular circumstances of the case.” Wegener
v. Johnson, 527 F.3d 687, 692 (8th Cir.
2008). However, the pretrial disclosure rule should be
applied “flexibly and pragmatically on an
individualized basis.” Tracey v. St. Jude Medical
S.C., Inc., No. 8:14CV198, 2016 WL 4735024, at *2 (D.
Neb. Sept. 9, 2016). “Exclusion of evidence is a harsh
penalty, and should be used sparingly.” ELCA
Enters. v. Sisco Equip. Rental & Sales, 53 F.3d 186,
190 (8th Cir. 1995).
Court will not preclude the four witnesses from testifying at
trial. However, in so ruling, the Court does not condone
Defendant's behavior in supplementing its Rule 26(a)
disclosures to first identify the four witnesses and then
simultaneously listing the individuals on its witness list.
It is this Court's expectation that supplementation be
done in a timely manner. Nevertheless, in this case,
there has been no showing that Defendant's actions caused
Plaintiff to suffer any unfair surprise. Plaintiff has been
aware of the four witnesses and their roles throughout this
the issue of prejudice, the Court agrees Plaintiff would be
prejudiced if these individuals were allowed to testify at
trial because she has not had an opportunity to depose them.
Any prejudiced can be cured by re-opening discovery and
allowing Plaintiff to depose these individuals. Therefore,
the Court will grant Plaintiff's alternative request for
leave to depose the witnesses. Plaintiff will be given
forty-five (45) days to complete this task. The pretrial
conference and trial will be rescheduled to accommodate
Plaintiff's additional discovery.
IT IS ORDERED:
Plaintiff's Motion to Exclude Defendant's Previously
Undisclosed Witnesses (Filing No. 46) is granted in