Lexington Furniture Industries, Inc. v. The Lexington Company, AB

Background

Fact discovery closed on February 14, 2020. The defendant’s required initial disclosures were due September 27, 2019. Those disclosures identified Tommy Lindhe, the defendant’s chief operating officer and chairman, but did not identify Kristina Lindhe, the defendant’s chief executive officer, as someone likely to have information that the defendant might use at trial.

The defendant did not claim that the omission was accidental or a mistake. Because Kristina Lindhe was not disclosed, the plaintiff did not seek her deposition. On May 19, 2021, while the parties were preparing final pretrial submissions, the defendant supplemented its disclosure to identify her. The plaintiff objected to the late disclosure and to her testifying at trial.

Court’s analysis

The court evaluated four factors: the defendant’s explanation for the violation, the importance of Kristina Lindhe’s testimony, the prejudice to the plaintiff, and the effect on the case schedule. The defendant blamed the plaintiff for producing some of the defendant’s advertising and marketing material after discovery closed, but the court found that Kristina Lindhe had been identified on the same subjects as Tommy Lindhe and that the defendant had known about those subjects when it made its original disclosures.

The court also found that Tommy Lindhe could testify about the same topics, because the two disclosures were identical in the relevant respects. Allowing the late disclosure would require the plaintiff to depose Kristina Lindhe before trial. The court concluded that this could lead to broader reopening of discovery, including additional witness examinations and document production, and would delay the trial schedule.

Under Rule 37(c)(1) of the Federal Rules of Civil Procedure, a party that fails to make a required disclosure generally may not use the undisclosed information or witness unless the failure was substantially justified or harmless. The court concluded that the defendant’s failure to disclose Kristina Lindhe was neither. It also rejected the defendant’s argument that excluding her testimony would be unjust, noting that she had not been identified in the original disclosures or at any time before discovery closed.

Ruling

Judge P. Castel granted the plaintiff’s motions, Documents 129 and 131, to the limited extent of precluding Kristina Lindhe’s testimony in the defendant’s case in chief. The court did not limit Tommy Lindhe’s testimony on any claim or defense and did not limit the defendant’s right to object to the plaintiff’s evidence. The Clerk was directed to terminate the motions.