Perata v. City and County of San Francisco

Background

Sarah Perata disclosed 69 additional witnesses on or near the end of fact discovery. The court later found that the disclosures were untimely under Federal Rule of Civil Procedure 26(e) and that Perata had not shown substantial justification or harmlessness for the late disclosure of several witnesses. The court allowed the declarations of two witnesses but refused to consider declarations from six others, including Joseph Kellison, Teresa Cavanaugh, Angela Jovel, and Heather Grives.

Perata then asked to reopen discovery, under Rule 16 or alternatively Rule 6(b)(1)(B), so that the City and County of San Francisco could depose those four witnesses. Perata offered to pay for three hours of each deposition. The City opposed the motion, arguing that it was an improper request to reconsider the earlier ruling. The City also argued that the depositions would require additional work, including reviewing personnel files, re-interviewing employees, and possibly issuing subpoenas.

Court’s reasoning

The court concluded that Perata’s requested relief was actually a motion for a lesser sanction under Rule 37(c)(1). That rule generally prevents a party from using information or a witness that was not properly disclosed unless the failure was substantially justified or harmless. It also allows a court, on motion, to impose another appropriate sanction instead of excluding the evidence.

The court reasoned that allowing the City to depose the four witnesses, while requiring Perata to pay the costs, would address the prejudice caused by the late disclosure. The late disclosure had deprived the City of an opportunity to depose the witnesses and had placed the four witnesses within a larger list that made it difficult to determine whom to depose. The court found that the requested depositions would give the City adequate time to prepare before trial and put it in roughly the position it would have occupied if the witnesses had been timely disclosed.

The court declined to decide the City’s argument that the four witnesses had no relevant or admissible testimony.

Ruling

Judge Thomas S. Hixson granted Perata’s motion. The City may depose Joseph Kellison, Teresa Cavanaugh, Angela Jovel, and Heather Grives for up to three hours each. Perata must pay up to three hours of defense counsel’s time for each deposition, plus court reporter and videographer fees.