Asset Marketing Services, LLC v. JAM Products, Inc.et al

Background

The court considered defendants’ letter request to exclude Armen Vartian’s testimony at trial. The final pretrial order required each party to identify by May 19, 2021, the witnesses it intended to call, along with each witness’s address and a brief description of the expected testimony. The order stated that an unidentified person could not testify unless the omission was excused for good cause.

Plaintiff had timely disclosed that it intended to use invoices prepared by Vartian to support its damages claims, but it did not identify Vartian as a trial witness. Plaintiff added him to an amended witness list filed July 20, 2021, thirteen days before trial. Defendants objected and requested that the court prevent him from testifying. Defendants had also moved to exclude Vartian’s invoices as irrelevant.

Parties’ Positions

Plaintiff argued that good cause existed because, at the July 16 pretrial conference, the court had expressed the view that the invoices were inadmissible without testimony about the tasks Vartian performed. Plaintiff also argued that defendants would not be prejudiced because they had known for more than a year, through discovery of the invoices, that part of plaintiff’s damages claim involved Vartian’s work.

Court’s Analysis

The court stated that the good-cause standard is exacting and does not depend on whether the opposing party can show prejudice. Although the court had explained that the invoices were inadmissible without testimony establishing their foundation and relevance, it had not intended to give plaintiff permission to add an undisclosed witness at the last minute.

The court acknowledged that defendants knew Vartian was important to plaintiff’s damages claims. But plaintiff’s exhibit and witness disclosures showed that it had decided to proceed without his testimony, and defendants had timely challenged that approach in their motion in limine. The court held that plaintiff was bound by that choice and had not shown good cause to add a witness less than two weeks before trial whom defendants had not had an opportunity to depose.

Plaintiff offered to make Vartian available for a deposition. The court found that a deposition during final trial preparation would not cure the prejudice caused by his late addition and, in any event, would not change the good-cause analysis.

Disposition

The court GRANTED defendants’ Letter Request to Exclude Mr. Vartian’s Testimony. The order therefore barred Vartian from testifying at trial.