Jones v. Brennan

Background

This order addressed Defendant Megan J. Brennan’s Motion in Limine No. 1, a pretrial request to exclude evidence or witnesses. Brennan asked the court to exclude 20 witnesses that Plaintiff Kyung Sook Jones had included in the Joint Pretrial Statement but had not previously identified in her initial disclosures or answers to interrogatories.

The court explained that General Order 71 requires a plaintiff in an employment case involving an adverse action to identify people believed to have information about the claims or defenses. Federal Rule of Civil Procedure 26(e) requires parties to timely supplement or correct those disclosures. Under Rule 37(c)(1), a party generally may not use a witness or information that it failed to disclose as required unless the failure was substantially justified or harmless.

Analysis

Jones listed 33 witnesses in the Joint Pretrial Statement. Brennan sought to exclude 20 of them. Brennan confirmed that 18 had not been identified in Jones’s initial disclosures or interrogatory responses. The 18 witnesses were Jagdeep S. Varaich, Patricia J. Redden, Daniel Sekera, John Hufancia, Michelle, Angela Daccardo, Steven Washburn, Amber, Rodney, Dr. Ellis, Stefanie Kalin, Beatriz Lopez, Andrew Smith, Mary Hopkins, Bobbi Riley, Maria Lane, Frank Canaletto, and Riley.

Jones did not argue that her failure to disclose the 18 witnesses was substantially justified. She instead argued that the failure was harmless because she had identified some witnesses in other ways, including a February 19, 2020 email and declarations from five witnesses submitted with her opposition to summary judgment in December 2019. The court noted that Jones effectively acknowledged the witnesses were not identified in her initial disclosures or interrogatory responses, or otherwise identified until after discovery closed.

Brennan stated that allowing the witnesses would significantly disrupt trial preparation because she would need to depose them and amend her pretrial submissions. The court agreed that Brennan had been deprived of the opportunity to conduct discovery about the witnesses before the discovery deadline. Because trial was scheduled to begin in a few days, the court found that reopening discovery was infeasible and that the late disclosure was inherently harmful.

Disposition

The court granted in part and denied in part Motion in Limine No. 1. It granted Brennan’s request to exclude the 18 witnesses listed on the second page of the order. It denied as moot the request to exclude Lawrence E. LaCroix and Mike Hetticher because those individuals were not included in Jones’s witness list in the Joint Pretrial Statement, which the court understood to mean that Jones no longer intended to call them.