Allen et al v. Pulaski County

Filing 109

ORDER denying 105 Motion to Strike one of the County's proposed trial witnesses. Signed by Judge Susan Webber Wright on 5/2/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CHRISTOPHER ALLEN, ET AL.
Plaintiff
V.
PULASKI COUNTY
Defendant

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NO: 4:10CV1514 SWW

ORDER
Current and past employees of the Pulaski County Regional Detention Facility
(“PCRDF”) bring this action against Pulaski County (“the County”) pursuant to the Fair Labor
Standards Act, 29 U.S.C. §§ 201- 219. Before the court is Plaintiffs’ motion to strike one of the
County’s proposed trial witnesses (docket entry #105), the County’s response in opposition
(docket entry #107), and Plaintiffs’ reply (docket entry #108). After careful consideration, and
for reasons that follow, the motion to strike is denied.
By order entered January 6, 2012, the Court denied Plaintiffs’ previous motion to
exclude the testimony of witnesses on the basis of untimely disclosure. The Court found that the
County provided a reasonable explanation for its failure to provide initial disclosures within the
time limit required under Rule 26(a)(1)(C). Additionally, the Court directed the parties to
cooperate in efforts to ensure that Plaintiffs have an opportunity to depose witnesses identified in
the County’s disclosures.
Plaintiffs report that on March 16, 2012, counsel conferred and scheduled depositions of
the County’s witnesses, with the exception of a former PCRDF employee, Tommy Whitfield.
By email dated March 28, 2012, the County informed Plaintiffs that it would call Michael

Haggerty in Whitfield’s place, and that Haggerty would be available for deposition on April 10,
2012. See docket entry #105, Ex. B.
Plaintiffs agreed to substituting Haggerty in place of Whitfield on the condition that the
County would not replace or add any new witnesses. See id. The County responded that while it
did not anticipate additional changes to its witness list, it could not pledge that it would not add
witnesses in the future. In its response to Plaintiffs’ present motion, the County explains that it
has a high employee-turnover rate, which may require it to amend its witness list again.
Plaintiffs assert that the Court should exclude Haggerty as a witness because the order
entered January 6, 2012 only permitted depositions with respect to witnesses identified in the
County’s untimely, initial disclosures. Plaintiffs contend that they will be prejudiced if the
County is permitted to continue changing its witnesses.
Pursuant to Rule 37(c)(1), if a party fails to identify a witness as required under 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. In the case of Haggerty, the Court finds that
striking him as a witness is not justified. The County named him as a replacement for a witness
who no longer works for the PCRDF, and there is sufficient time for Plaintiffs to depose him
prior to trial. In the event that the County makes further amendments to its witness list, Plaintiffs
may seek relief under Rule 37(c)(1).
IT IS THEREFORE ORDERED that Plaintiffs’ motion to strike (docket entry #105)
is DENIED.
IT IS SO ORDERED THIS 2nd DAY OF MAY, 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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