McCollum v. UPS Ground Freight Incorporated et al

Filing 131

ORDER granting 122 Motion for Reconsideration. Signed by Judge David G Campbell on 1/8/2013.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stephanie McCollum, as Conservator for
the minor wrongful death beneficiaries, on
behalf of all wrongful death beneficiaries;
and as Personal Representative of the estate
of Marcela Baca,

No. CV11-0961 PHX DGC
ORDER

Plaintiff,

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v.

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UPS Ground Freight Incorporated, et al.,

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Defendants.
Plaintiffs have filed a motion for reconsideration. Doc. 122. Defendants have
filed a response. Doc. 129. For reasons that follow, the Court will grant the motion.

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At the final pretrial conference on December 12, 2012, Plaintiffs objected to the

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inclusion of Gary Glover as a defense witness in the proposed final pretrial order, noting

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that Mr. Glover was never disclosed under Federal Rule of Civil Procedure 26(a)(1)(A)(i)

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and was not disclosed during the discovery period. Rather, Mr. Glover was disclosed for

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the first time in early December of 2012 as the parties were preparing the proposed final

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pretrial order. Defendants responded that Mr. Glover was disclosed more than 30 days

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before trial as required by Rules 26(a)(3)(A)(i) and (B). After hearing the parties’ brief

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oral arguments, the Court concluded Mr. Glover should be permitted to testify because he

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was disclosed more than 30 days before trial as required by Rule 26(a)(3)(B). Upon

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receiving Plaintiffs’ motion for reconsideration and Defendants’ response, however, the

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Court has had occasion to review the relevant rules, case law, and statements made by the

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parties in connection with this issue. The Court concludes that Mr. Glover should have

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been disclosed earlier in the litigation and that Defendants’ failure to disclose is not

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substantially justified or harmless. The Court will therefore preclude Defendants from

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calling Mr. Glover as a witness at trial.

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Rule 26(a)(1)(A)(i) provides that a party “must, without awaiting a discovery

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request, provide to the other parties . . . the name, and, if known, the address and

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telephone number of each individual likely to have discoverable information – along with

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the subjects of that information – that the disclosing party may use to support its claims

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or defenses, unless the use would be solely for impeachment.” This rule imposes an

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affirmative obligation. Defendants were required to disclose any witness likely to have

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discoverable information and whom Defendants knew they “may use to support” their

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defense.

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information and whether Defendants knew that they may use him to support their

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defense. If so, Rule 26(a)(1)(i) required his disclosure.

The relevant question, therefore, is whether Mr. Glover has discoverable

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Mr. Glover clearly has discoverable information. Defendants’ response to the

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motion to reconsider states that “Mr. Glover will testify regarding UPS Freight’s

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retention, training, and supervision of contract drivers. In addition, Mr. Glover will

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testify specifically about UPS Freight’s retention, training, and supervision of Mr.

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Maldonado and Mr. Duenas [the Defendant drivers in this case who caused the accident

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that injured Plaintiffs], as well as the manner in which Mr. Maldonado and Mr. Duenas

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were compensated by UPS Freight. Mr. Glover will also testify about how routes were

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assigned to Mr. Maldonado and Mr. Duenas and how they were monitored by UPS

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Freight while they were on the road.” Doc. 129 at 2. These are important matters in this

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case. In fact, when Defendants made their late disclosure of Mr. Glover, they suggested

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that Plaintiffs could depose him before trial. Doc. 122-1 at 2.

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The record also makes clear that Defendants have known from the beginning of

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this case that a witness such as Mr. Glover, the Director of Supplemental Transportation

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at UPS Freight, may be used to support their defense. When the parties addressed this
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issue during the final pretrial conference on December 12, 2012, defense counsel stated

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that Mr. Glover’s “proposed testimony would frankly be on behalf of the company [and]

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relate to issues that have been the very issues this case has been about since day one.”

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Court’s LiveNote Transcript at 48-49 (emphasis added). Defense counsel further stated

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that Plaintiffs “never asked for any of this in written discovery for us to identify anybody

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who would testify on behalf of the company about the issues they’ve created or identified

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that are issues in this case. At the end of the day, I want somebody who can testify about

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issues that Mr. Alex [Plaintiffs’ counsel] has known have been the very issues in this case

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since he filed this lawsuit.” Id.at 49 (emphasis added). Defendants’ response to the

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motion for reconsideration similarly states that “Plaintiffs chose to name UPS as a

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defendant to this action and therefore cannot be surprised that a representative of UPS

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may be called to testify at trial.” Doc. 129 at 4 (emphasis added).

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If the likelihood and relevancy of Mr. Glover’s testimony have been evident to

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Plaintiffs since the beginning of this case as Defendants so firmly assert, then the

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likelihood and relevancy of his testimony have also been evident to Defendants from the

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beginning.

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information” whom Defendants knew they “may use to support” their defense. Fed. R.

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Civ. P. 26(a)(1)(A)(i). He should have been disclosed under Rule 26(a)(1)(A)(i).

Mr. Glover, therefore, is an “individual likely to have discoverable

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Defendants argue that they did not identify Mr. Glover until just before the final

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pretrial conference “because, at the time [of their initial disclosures], Defendants were

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unaware they may need to call him to testify, and in fact did not become aware of such a

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need until the depositions of the Defendant drivers and the Court’s ruling on Defendants’

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summary judgment motions, which occurred after the close of discovery.” Doc. 129 at 4.

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There are several problems with this statement. First, it directly contradicts Defendants’

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claim that the likelihood of Mr. Glover’s testimony has been evident from the beginning

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of this case. Second, the statement concerns when Defendants knew they needed to call

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Mr. Glover, but Rule 26(a)(1)(A)(i) does not require such certainty – it requires

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disclosure of witnesses that Defendants “may use to support” their defense. Third, the
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Defendant drivers were deposed in March of 2012 (Docs. 74-3 at 2, 74-11 at 2), and

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Defendants were required to timely supplement their initial disclosures. Fed. R. Civ. P.

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26(e)(1)(A). If Defendants had supplemented their disclosures after the depositions, Mr.

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Glover’s testimony would have been known to Plaintiffs eight months earlier and at a

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time when the Court and parties could have considered whether preclusion was warranted

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or additional discovery should be permitted.

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Furthermore, the fact that Plaintiffs knew that Mr. Glover or someone like him had

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relevant information and may be called by Defendants to testify at trial did not excuse

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Defendants’ nondisclosure. Rule 26(a)(1)(A)(i) disclosures communicate more than the

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identity of persons with knowledge; they also disclose the critical fact that the opposing

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party may use an individual as a witness at trial. See Johnson v. United Parcel Service,

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236 F.R.D. 376, 378 (E.D. Tenn. 2006) (“[T]he fact Defendant might have been on notice

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[of the undisclosed information] does not excuse Plaintiff’s failure to disclose[.] . . . Rule

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26 puts the burden on the party intending to present [evidence] to notify the other party of

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its intent to do so.”); S. Gensler, Federal Rules of Civil Procedure, Rules and

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Commentary, at 495 (West 2011) (“The fact that the other party already knows of a

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potential witness . . . does not, by itself, achieve the critical purpose of the Rule

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26(a)(1)(A) disclosures, which is to inform the other parties which witnesses and

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documents the disclosing party may use to support its claim or defenses.”).

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Nor does the existence of the pretrial disclosure requirement in Rule 26(a)(3)(A)

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excuse Defendants’ failure to identify Mr. Glover in their initial disclosures or timely

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supplements. By its terms, Rule 26(a)(3)(A) establishes an obligation “[i]n addition to

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the disclosures required by Rule 26(a)(1) and (2).” (Emphasis added.) Rule 26(a)(3)(A)

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thus is an additional disclosure obligation, not an alternative means of disclosing required

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information.

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If a party fails to make a disclosure required by Rule 26(a)(1)(A), the undisclosed

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information may not be used at trial “unless the failure was substantially justified or is

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harmless.”

Fed. R. Civ. P. 37(c)(1).

Because Defendants have admitted that the
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relevance of Mr. Glover’s testimony was apparent from the outset of this case, their

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failure to include him in the mandatory Rule 26(a)(1)(A)(i) disclosures or timely

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supplements was not substantially justified.

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nondisclosure was harmless. Although Plaintiffs may have been able to anticipate that

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Defendants might call such a witness at trial, Plaintiffs were not told, as Rule

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26(a)(1)(A)(i) required, that UPS may use such a witness to support its defense.

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Plaintiffs were entitled to rely on the “critical” purpose of Rule 26(a)(1)(A) – “to inform

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[them] which witnesses and documents the disclosing party may use to support its claim

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or defenses.” S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary, at

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495. Plaintiffs were not apprised of this information until discovery had closed, the

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motion for summary judgment had been decided, and the final pretrial conference was

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imminent, and therefore were not afforded an opportunity to conduct relevant discovery

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or formulate their case strategy to account for this evidence. Defendants have suggested

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that Mr. Glover may be deposed before trial (which starts next week), but the Court

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cannot conclude that such a deposition will eliminate all harm when avenues for other

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discovery have been foreclosed by the end of the discovery period and the firm trial date.

Nor can the Court conclude that the

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Because the Court concludes that Mr. Glover should have been timely disclosed

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under Rule 26(a)(1)(A)(i) and that the failure to disclose him was not substantially

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justified or harmless, Defendants may not call him as a witness at trial. The exclusion

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provision of Rule 37(c) is self-executing and automatic when a failure to disclose is not

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substantially justified or harmless. See Hoffman v. Constr. Protective Serv., Inc., 541

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F.3d 1175, 1180 (9th Cir. 2008).

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Dated this 8th day of January, 2013.

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