Watkins Incorporated v. McCormick and Company, Incorporated

Background

Watkins brought claims under the Lanham Act and various state laws concerning McCormick’s alleged use of “nonfunctional slack-fill” in black ground pepper tins. This order addressed only McCormick’s motion to strike Watkins’s Third Amended Initial Disclosures and exclude Watkins’s untimely disclosed witness.

Watkins’s Third Amended Initial Disclosures identified Jacquelynn Karau, a Quality Assurance Manager at Watkins, as a witness. Karau had analyzed Watkins’s and McCormick’s pepper tins in May and June 2015. The related documents included photographs, underlying data, emails, handwritten notes, measurements, and conclusions about the pepper tins. Watkins stated that Karau’s testimony would be limited to establishing the documents’ foundation, if necessary.

The scheduling order required updates to initial disclosures by August 3, 2020, and fact discovery was completed under a later deadline related to follow-up discovery. Watkins disclosed Karau in September 2022. McCormick argued that the disclosure was untimely, unjustified, and prejudicial because Karau’s anticipated testimony would address the testing methods, measurements, results, and reliability of the analyses. Watkins argued that Karau would testify only about foundation and authentication, and that any prejudice could be addressed through a deposition.

Legal standard

Federal Rule of Civil Procedure 26 requires parties to disclose individuals likely to have discoverable information and to timely supplement or correct those disclosures. Under Rule 37(c)(1), a party that fails to identify a required witness generally may not use that witness at trial unless the failure was substantially justified or harmless. Courts consider the importance of the excluded material, the explanation for the failure to disclose, the possible prejudice, and whether a continuance could cure that prejudice.

Court’s analysis

The court concluded that Karau’s expected testimony went beyond authentication. Watkins’s statements showed that it intended to have Karau testify about the testing methodology, the accuracy of her measurements, whether she correctly recorded the measurements, and whether the testing was reliable and correct. The court determined that this testimony would address the substance and reliability of the documents and analyses, not merely whether the documents were genuine.

The court also found that McCormick would be prejudiced by the late disclosure. More than seven years had passed since Karau performed the testing. The executive who requested the testing had died, another person involved with the results had retired and moved away, and McCormick said it would need additional depositions and possibly expert analysis. The court found that a continuance could not cure the effects of the passage of time, faded memories, and the death of a person involved in the testing.

Watkins did not sufficiently explain why Karau was not disclosed earlier and did not establish that the late disclosure was harmless or substantially justified. The court therefore prohibited Watkins from calling Karau as a witness at trial.

Order

The court GRANTED McCormick’s Motion to Strike Watkins Incorporated’s Third Amended Initial Disclosures and Exclude an Untimely Disclosed Witness. It also PRECLUDED Jacquelynn Karau from testifying at trial and STRUCK paragraph (j) of Watkins’s Third Amended Initial Disclosures.

This was a discovery and evidence-management ruling; the order did not decide the underlying Lanham Act or state-law claims.