Deposing Fact Witnesses Who Were Not Disclosed on Initial Disclosures

The Federal Rules of Civil Procedure require parties to identify the "names and if know, the address and telephone number of each individual likely to have discoverable information . .  .which the disclosing party may use to support its claims or defenses unless the use would be solely for impeachment." Rule 26(a)(1)(A)(I). 


Sometimes a party will try to depose a fact witness in order to memorialize fact testimony that is helpful to that party even though the deposing party never identified the fact witness on its Initial Disclosures. 


The federal rules prohibit this.  If a party intends to use fact testimony to support its claims or defenses, it must disclose that individual in the Initial Disclosure (or on an Supplemental Initial Disclosure). Failure to identify the witness on an Initial Disclosure or to supplement the Initial Disclosure with the witnesses name and identifying  information is a basis to quash a fact witness deposition of that witness.


Rule 26(a)(1)(A)(i) of the Federal Rules of Civil Procedure requires parties to disclose all fact witnesses that may have discoverable information.  . 
“If a party fails to provide information or identify a witness as required by Rule 26(a) . . .  the party is not allowed to use that information or witness”.  Fed. R. Civ. P. 37(c)(1).   Courts have previously excluded non-disclosed witnesses that presented a “surprise” to opposing parties and would, if allowed, disrupt the trial schedule.  See SMD Software, Inc. v. EMove, Inc., 2013 U.S. Dist. LEXIS 146864, at *21 (E.D.N.C. Oct. 10, 2013) (Flanagan, J.)


It is not enough that the undisclosed fact witness may have been identified in documents, depositions or even (collaterally) in interrogatory responses. A witness must be disclosed in an Initial Disclosure.


 
"To the extent that plaintiffs argue that they had already disclosed these witnesses in discovery, this argument is without merit. The fact that these witnesses names might have appeared within over 7,200 pages of call log notes or customer lists which were difficult to read and had thousands of names, see Defs. Mem. Supp. Exs. L & M, does not amount to proper disclosure under Rule 26(a)(1). See Hoyle v. Freightliner, LLC, 650 F.3d 321, 328-30 (4th Cir. 2011) (references to a witness in an interrogatory response and in deposition testimony did not prevent preclusion of the witness was not a substitute for actual Rule 26(a)(1) disclosure)."

SMD Software, Inc. v. EMove, Inc., 2013 U.S. Dist. LEXIS 146864, *10 (E.D.N.C. Oct. 10, 2013)

.  The Federal Rules of Civil Procedure clearly exclude the testimony of Parnell, Reynolds and Akers:

“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial

Fed Rules Civ Proc R 37(c)(1)(emphasis added)

 

Courts apply this  Rule to exclude witnesses who were not disclosed in Initial Disclosures or in Supplemental Initial Disclosures:

 

A party is not "permitted to use as evidence at a trial … any witness or information" not disclosed pursuant to Rule 26(a). Fed. R. Civ. P. 37(c)(1). The only exceptions to this rule of exclusion are when the failure to disclose is substantially justified or when the nondisclosure is harmless

Wagoner v. Lewis Gale Med. Ctr., LLC, Civil Action No. 7:15-cv-00570, 2016 U.S. Dist. LEXIS 169892, at *9 (W.D. Va. Dec. 8, 2016) (Dillon, J.)

 

If a party fails to identify a person as required by Rules 26(a) or 26(e), that party is not permitted to call that person as a witness at trial unless such failure was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). The basic purpose of this exclusionary rule is to prevent "surprise and prejudice to the opposing party." It is not necessary that the nondisclosure be in "bad faith or callous disregard of the discovery rules" for the evidence to be excluded. Id. The burden is on the nondisclosing party to show harmlessness or justification.

Quesenberry v. Volvo Grp. N. Am., Inc., 267 F.R.D. 475, 478 (W.D. Va. 2010);citing S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).(emphasis added)

 

The fact that a witness may be  identified in an interrogatory answer does not solve the problem . “disclosure in the right form (complete) and at the right time is critical to an opposing party” Kellington v. Bayer Healthcare Pharms., Inc., Civil Action No. 5:14-cv-2, 2016 U.S. Dist. LEXIS 116129, at *28 (W.D. Va. Aug. 30, 2016) (Dillon, J.)