Wilkerson v. Metropolitan Transportation Authority

Background

The defendants asked the court to reconsider two pretrial witness rulings. The court had denied their request to bar Minnie Davis from testifying for Wilkerson after Wilkerson produced an interrogatory response identifying Davis as one of the people he intended to call as a fact witness. The court had separately barred Valerie Dabas from testifying for the defendants after they disclosed her shortly before trial.

Minnie Davis

The defendants no longer disputed that Wilkerson had identified Davis as a potential trial witness. Instead, they argued that his interrogatory response did not satisfy Federal Rule of Civil Procedure 26(a)(1)(A)(i) because it identified Davis and her employment but did not describe the subject matter of the information she possessed.

The court denied reconsideration as to Davis. It explained that the defendants could have made that argument in their original request to bar her but did not do so. Reconsideration is an extraordinary remedy and is not an opportunity to raise a new argument or obtain a second chance. The court also stated that any lack of detail was harmless under the circumstances: Davis was one of only four people Wilkerson identified as intended trial witnesses, the disclosure occurred before discovery closed, and the defendants could have deposed her or asked Wilkerson for more information.

Valerie Dabas

The defendants argued that their earlier interrogatory responses had identified Dabas as a person with knowledge of Wilkerson’s religious-discrimination and retaliation claims and of the defendants’ policies and procedures. They contended that this disclosure supported reconsideration of the order barring her testimony.

The court denied reconsideration as to Dabas for two independent reasons. First, the defendants knew or should have known about the interrogatory responses when they previously sought to reopen discovery. They did not then tell the court that Dabas was important or argue that the interrogatory responses supported allowing her to testify. The court found it unfair to let the defendants raise those points for the first time immediately before trial.

Second, the court held that the disclosure did not satisfy Rule 26(a)(1). Under that rule, identifying a person as having relevant information is not enough; the disclosure must notify the opposing party that the person might be called as a trial witness. The court found that the defendants’ responses did not provide that notice. It also noted that the defendants still had not explained why Dabas’s testimony was important.

Disposition

The court denied the defendants’ motion for reconsideration. The earlier rulings therefore remained in effect: Minnie Davis could testify for Wilkerson, and Valerie Dabas could not testify for the defendants at trial.