Global Association of Risk Professionals v. Global Institute of Financial…

Background

Global Association of Risk Professionals, Inc. (GARP) asked the court to strike direct testimony, exhibits, and other materials that Global Institute of Financial Professionals (GIFP) allegedly submitted after the deadlines in the court’s May 11, 2022 scheduling order. The order required GIFP’s direct testimony by affidavit, trial brief, motions, and responses to GARP’s motions by June 20, 2022. The court had not set limits on the number or length of testimony submissions or exhibits.

GIFP timely filed its initial trial submissions, including a declaration from its chief executive officer, Fiona Zhou. Eleven days later, GIFP filed another Zhou declaration with additional exhibits, an attorney declaration from Yue Xu, a new exhibit list, and a supplemental brief. After a final pretrial conference, the court allowed GIFP to file revised declarations and exhibits by August 12, 2022, without preventing GARP from moving to strike them. GIFP then filed a revised Zhou declaration and a Xu declaration.

Court’s Analysis

The court emphasized that written direct testimony should have some flexibility because live direct examination at a bench trial can develop in response to the evidence. It considered the risk of prejudice, the length and effect of the delay, the reason for the delay, whether GIFP controlled the delay, and whether GIFP acted in good faith. The court found that cross-examination and rebuttal evidence reduced the risk of genuine prejudice, GIFP acted promptly after the issue arose, and no trial date had yet been set. Although the delay was not adequately explained and appeared to be within GIFP’s control, the court found no evidence of a tactical advantage and presumed good faith.

The court allowed Zhou’s August 12 declaration to stand as her direct testimony. It struck her first two declarations as direct testimony but allowed GARP to use them during cross-examination. Because GIFP had submitted no declaration from Xu by the June 20 deadline, and because Xu’s personal knowledge of relevant matters was unclear, the court struck the Xu declaration. It did so without prejudice to GIFP’s arguments about admitting the underlying evidence through judicial notice or another method.

The court allowed GIFP’s revised exhibit list to stand because all but three exhibits had already been identified in an earlier exhibit list or supplemental trial brief. It left arguments about exhibits not identified by June 20 for trial. It denied GARP’s request to strike DX 57, a purported corrected declaration from P. Jay Hines, without prejudice to renewal at trial. The court declined to strike GIFP’s trial briefs because they contained argument rather than evidence.

Disposition

The court’s conclusion states that the motion to strike was denied without prejudice as to exhibits not identified before June 20, 2022, and as to the Hines declaration. The motion was granted as to the Xu declaration. The clerk was directed to terminate the motion. The court set trial for May 9, 2023, at 10:00 a.m. in Courtroom 11D.

Judge P. Castel issued the order on January 12, 2023.