Cramton v. Grabbagreen Franchising LLC et al

Filing 372

ORDER: IT IS ORDERED that Plaintiff's request to preclude Griffin from testifying at trial (Doc. 364 ; Doc. 310 at 95) is granted [see attached Order for details]. Signed by Judge Dominic W Lanza on 12/3/20. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kim Cramton,
Plaintiff,

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ORDER

v.

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No. CV-17-04663-PHX-DWL

Grabbagreen Franchising LLC, et al.,

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Defendants.

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The Court previously granted Defendants’ request to allow certain witnesses to

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testify remotely at the upcoming bench trial but ordered supplemental briefing as to

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whether one of those witnesses, Tina Griffin, should be precluded from testifying as a

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sanction under Rule 37 based on late disclosure. (Doc. 362.) The Court has now reviewed

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the parties’ supplemental briefing (Docs. 363, 364, 366) and rules as follows.

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Plaintiff’s request to preclude Griffin from testifying will be granted. It was

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improper for Defendants to wait to disclose Griffin as a witness until the very last day of

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the discovery period. This isn’t a case where Defendants were unaware of Griffin’s identity

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at the outset of discovery or had no reason to suspect at the outset of discovery that Griffin’s

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testimony might be relevant. To the contrary, Griffin was living with Defendant Keely

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Newman, was present during the key event in this case (the phone call between Plaintiff

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and Newman), and is being offered to testify about that phone call. (Doc. 310 at 94.) Thus,

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Defendants’ assertion that they didn’t realize the significance of Griffin’s testimony until

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hearing Plaintiff’s deposition testimony, because that testimony included new allegations

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of mistreatment that Griffin will be able to rebut (Doc. 363 at 4), is unpersuasive. Griffin

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isn’t being offered (at least, according to Defendants’ description of her anticipated

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testimony in the Final Pretrial Order) to testify about the general contours of the

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relationship between Plaintiff and Newman—instead, Griffin is being offered to testify

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about what she overheard during the fateful phone call. (Doc. 310 at 46, 53, 63, 94.)

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For these reasons, it should have been apparent to Defendants from the outset of this

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case that Griffin, the sole non-party percipient witness to the key event on which liability

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turns, would be a key witness. Defendants were thus required to disclose Griffin in the

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initial disclosures they provided to Plaintiff pursuant to the Mandatory Initial Discovery

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Pilot Project (“MIDP”), which was in effect during the discovery process in this case. See

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D. Ariz. G.O. 17-08 ¶ B(1). Defendants could not, in contrast, wait until the last day of the

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discovery period and then “supplement” their disclosures by identifying Griffin for the first

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time. Supplementation is appropriate “when new or additional information is discovered

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or revealed,” id. ¶ A(8), not to belatedly supply information that should have been provided

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at the outset. Cf. Jackson v. Am. Fam. Mut. Ins. Co., 2012 WL 845646, *3 (D. Nev. 2012)

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(“[T]he court finds Plaintiff’s disclosure of these three witnesses is not timely. . . . [T]hese

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three witnesses, who were disclosed on the last day of the extended discovery cutoff, are

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friends of the Plaintiff who knew him before the March 20, 2004, accident. They were

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disclosed too late for Defendant to conduct formal or informal discovery.”); Lopez v.

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United Parcel Serv. Gen. Serv. Corp., 2006 WL 8441568, *2 (D. Nev. 2006) (“[A] party

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may not wait until the last day of discovery to disclose the identity of witnesses or

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documents that the party reasonably knows it may use in support of its claims or defenses.

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Such witnesses and documents should either be listed in the party’s initial disclosures . . .

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or in a timely supplemental disclosure . . . .”).

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Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that “[i]f a party fails

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to . . . identify a witness as required by Rule 26(a) or (e), the party is not allowed to use

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that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure

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was substantially justified or is harmless.” The purpose of this rule is to “‘give[] teeth’ to

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Rule 26’s disclosure requirements by forbidding the use at trial of any information that is

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not properly disclosed.” Goodman v. Staples The Off. Superstore, LLC, 644 F.3d 817, 827

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(9th Cir. 2011), superseded by rule on other grounds as recognized in Shrader v. Papé

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Trucks, Inc., 2020 WL 5203459, *2 n.2 (E.D. Cal. 2020). “The party facing sanctions

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bears the burden of proving that its failure to disclose the required information was

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substantially justified or is harmless.” R&R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240,

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1246 (9th Cir. 2012).

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Here, Defendants’ failure to properly disclose Griffin was neither substantially
justified nor harmless.

The absence of justification is addressed above.

As for

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harmlessness, although Defendants fault Plaintiff for not seeking to reopen discovery upon

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receiving their belated disclosure, this argument amounts to impermissible burden-shifting

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and fails in any event because the Court would not have been inclined to reopen discovery

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under the circumstances.

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Accordingly,

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IT IS ORDERED that Plaintiff’s request to preclude Griffin from testifying at trial

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(Doc. 364; Doc. 310 at 95) is granted.
Dated this 3rd day of December, 2020.

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