Greenlaw v. Su
- Virginia Demarchi
- 5:18-cv-04932
- U.S. District Court · Northern District of California
- 4
In Greenlaw v. Su, Judge DeMarchi denied Greenlaw’s request to bar two late-disclosed witnesses, ordering depositions instead.
Rosemary Greenlaw and Julie Su, the Secretary of the U.S. Department of Labor; the order also concerns potential witnesses Barabara Goto and Michelle Daniels.
What happened
In Greenlaw v. Su, Rosemary Greenlaw objected to Julie Su, the Secretary of the U.S. Department of Labor, using two witnesses at motions or trial because they were disclosed on the last day of fact discovery. Greenlaw said she would be prejudiced by having to take their depositions after discovery closed.
The court found that the Secretary should have disclosed the witnesses earlier under the case’s discovery procedures and the Federal Rules of Civil Procedure. But the court concluded that any prejudice could be corrected because the Secretary offered to make both witnesses available for deposition.
Judge Virginia K. DeMarchi ordered the Secretary to produce the witnesses for deposition if Greenlaw wants to take them, on dates that do not disrupt the case schedule. The court denied Greenlaw’s request to prevent the Secretary from calling either witness at a motion, hearing, or trial.
The detailed version
- Greenlaw v. Su · No. 5:18-cv-04932
- Virginia Demarchi
- Oct. 2, 2024
Background
Rosemary Greenlaw and Julie Su, identified in the opinion as the Secretary of the U.S. Department of Labor, asked the court to resolve a discovery dispute about two potential witnesses, Barabara Goto and Michelle Daniels. The Secretary first identified the witnesses at 3:00 p.m. on August 29, 2024—the day fact discovery closed.
Greenlaw objected to the Secretary relying on the witnesses’ testimony for motions or trial because there was no time left in the case schedule for Greenlaw to depose them. Greenlaw said taking two additional depositions after the discovery cutoff would be prejudicial. The Secretary maintained that the disclosure was timely and offered to make the witnesses available for deposition after discovery closed.
Court’s analysis
Federal Rule of Civil Procedure 26(e) requires a party to supplement a disclosure when it learns that the disclosure is materially incomplete or incorrect, unless the information was otherwise made known during discovery or in writing. Rule 26(g) also requires counsel to certify, after a reasonable inquiry, that disclosures are complete and correct when made. In this adverse-employment-action case, General Order 71 replaced the parties’ ordinary initial-disclosure obligations under Rule 26(a)(1), but it did not replace the duties to supplement disclosures and provide the required certifications.
The court found that the Secretary’s disclosure of Goto and Daniels on the last day of fact discovery did not comply with General Order 71 or Rules 26(e) and 26(g). The court reasoned that both witnesses had knowledge of facts concerning the claims or defenses and should have been disclosed when the Secretary made the required General Order 71 disclosures. The fact that the witnesses’ significance came up during Greenlaw’s deposition of another defense witness did not eliminate the Secretary’s independent duty to make a reasonable inquiry.
The court nevertheless concluded that Greenlaw had not shown prejudice that could not be cured without disrupting the trial or other case deadlines. The Secretary offered to produce both witnesses for deposition, and the court found that Greenlaw had not explained why taking those depositions would be unreasonable or disproportionate.
Ruling
The court ordered that Goto and Daniels be produced for deposition if Greenlaw wishes to depose them. The parties must agree on the date and time, with deference to Greenlaw’s preferences, and must schedule the depositions so they do not disrupt the dates for dispositive-motion hearings, the pretrial conference, or trial.
The court denied Greenlaw’s request to preclude the Secretary from calling Goto or Daniels as witnesses for a motion, hearing, or trial.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.