Palla v. L M Sports, Inc. et al
Filing
191
ORDER signed by District Judge John A. Mendez on 2/5/19 GRANTING In Part and DENYING In Part Plaintiff's Request to Add Certain Witnesses Previously Not Listed in Rule 26 Disclosures. (Coll, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
MANISHA PALLA,
12
13
14
15
16
Plaintiff,
v.
L M SPORTS, INC. dba LAKESIDE
MARINA and dba ACTION
WATERSPORTS OF TAHOE; L T
LEASING, INC.; PAUL GARCIA; and
DOES 1-50, inclusive,
17
18
Defendants.
AND RELATED ACTIONS.
19
20
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 2:16-cv-02865-JAM-EFB
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
REQUEST TO ADD CERTAIN
WITNESSES PREVIOUSLY NOT
LISTED IN RULE 26 DISCLOSURES
On January 4, 2019, the parties filed a Joint Pre-trial
21
Statement.
ECF No. 168.
L M Sports, et al. (“L M Sports”) argued
22
that the Court should not permit Palla to introduce witnesses at
23
trial that had not previously been disclosed according to Rule 26.
24
Id. at 11.
25
ordered briefing on the issue.
26
No. 176. Plaintiff’s brief in support of adding nine previously
27
undisclosed witnesses, ECF No. 179, and LM Sports brief in
28
opposition to Plaintiff’s request to add witnesses, ECF No. 186,
At the Pre-trial Conference a week later, the Court
Tr. of Proceedings at 45:3-19, ECF
1
1
2
have been received, read and considered by the Court.
Palla argues that four of the disputed witnesses—Mariah
3
Koeltl, Suvarna “Sue” Palla, Sukender Palla, and Saurav Palla—
4
should be allowed to testify because their identities were revealed
5
through the course of discovery.
6
Witnesses (“Plf.’s Memo”) at 4-7, ECF No. 179.
7
the remainder of the disputed witnesses should be allowed to
8
testify because her failure to disclose them was “substantially
9
justified or harmless.”
Memo. in Support of Additional
Id. at 7-10.
She contends that
L M Sports argues in its
10
opposition that (1) exclusion of witnesses not formally disclosed
11
is required by Rule 37, (2) the failure to disclose was neither
12
justified nor harmless, and (3) Palla would not be harmed by the
13
exclusion of these witnesses.
14
Defendants to [DKT 179] Brief (“Opp.”), ECF No. 186.
15
See generally, Opposition by
The Court GRANTS Plaintiff’s request in part.
If the Court
16
finds against L M Sports in the Limitation Action, Palla may
17
introduce Sue Palla, along with either Mariah Koeltl or Michelle
18
Chan as witnesses during the jury trial on damages.
19
make these witnesses available to L M Sports for depositions
20
following the first trial, and pay the cost of the depositions.
21
The depositions are to occur at a date convenient to L M Sports.
Palla must
22
23
I.
OPINION
24
A.
Legal Standard
25
Federal Rule of Civil Procedure 26(a)(1)(A) requires a party
26
“without awaiting a discovery request, [to] provide to the other
27
parties the name and . . . address and telephone number of each
28
individual . . . that the disclosing party may use to support its
2
1
claims or defenses . . . .”
Rule 26 also includes a duty to
2
timely supplement initial disclosures when the party learns “that
3
in some material respect the disclosure or response is incomplete
4
or incorrect.”
5
penalties for a party’s failure to disclose or supplement an
6
earlier response.
Fed. Rule Civ. Proc. 26(e).
Rule 37(c) imposes
7
B.
8
Palla was under a duty to supplement her initial disclosures,
9
Analysis
apprising L M Sports of the additional witnesses she wanted to
10
testify at trial.
11
Notes to the Federal Rules of Civil Procedure or the cases cited
12
to by Plaintiff from other district courts.
13
Furthermore, the Court does not find these sources persuasive
14
where they suggest a result that is contrary to what a plain
15
reading of Rule 26 requires.
16
Plaintiff to simply make passing references about the individuals
17
she intended to use at trial.
18
Defendants’ Opposition, the Court finds that Plaintiff’s failure
19
to satisfy Rule 26 was not substantially justified or harmless.
20
See Opp. at 9-12.
21
This Court is neither bound by the Advisory
See Plf.’s Memo at 3.
It was not enough under Rule 26 for
And for the reasons stated in
But L M Sports’ argument that Rule 37 requires the exclusion
22
of undisclosed witnesses in all circumstances is incorrect.
The
23
text of the rule plainly allows for sanctions “[i]n addition to or
24
instead of” exclusion.
25
The remedy fashioned by this Court falls within the discretion
26
afforded by Rule 37.
27
prejudice that would otherwise flow from Plaintiff’s failure to
28
disclose.
Fed. R. Civ. Proc. 37(c) (emphasis added).
It also adequately protects against the
L M Sports will not need to depose Palla’s witnesses
3
1
until after the conclusion of the Limitation Action, and only upon
2
a finding in favor of Plaintiff by the Court.
3
allowed to introduce two of the previously-undisclosed witnesses,
4
and will be required to pay the costs of the depositions.
5
solution is permissible under the Federal Rules, and best protects
6
the interests of each party.
Palla will only be
This
7
8
9
II.
ORDER
For the reasons set forth above, the Court GRANTS in part and
10
DENIES in part, Plaintiff’s Request to Add Certain Witnesses
11
Previously Not Listed in Rule 26 Disclosures.
12
13
IT IS SO ORDERED.
Dated: February 5, 2019
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?