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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MANISHA PALLA,

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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,

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Defendants.
AND RELATED ACTIONS.

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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

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Statement.

ECF No. 168.

L M Sports, et al. (“L M Sports”) argued

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that the Court should not permit Palla to introduce witnesses at

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trial that had not previously been disclosed according to Rule 26.

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Id. at 11.

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ordered briefing on the issue.

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No. 176. Plaintiff’s brief in support of adding nine previously

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undisclosed witnesses, ECF No. 179, and LM Sports brief in

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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

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have been received, read and considered by the Court.
Palla argues that four of the disputed witnesses—Mariah

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Koeltl, Suvarna “Sue” Palla, Sukender Palla, and Saurav Palla—

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should be allowed to testify because their identities were revealed

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through the course of discovery.

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Witnesses (“Plf.’s Memo”) at 4-7, ECF No. 179.

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the remainder of the disputed witnesses should be allowed to

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testify because her failure to disclose them was “substantially

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justified or harmless.”

Memo. in Support of Additional

Id. at 7-10.

She contends that

L M Sports argues in its

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opposition that (1) exclusion of witnesses not formally disclosed

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is required by Rule 37, (2) the failure to disclose was neither

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justified nor harmless, and (3) Palla would not be harmed by the

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exclusion of these witnesses.

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Defendants to [DKT 179] Brief (“Opp.”), ECF No. 186.

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See generally, Opposition by

The Court GRANTS Plaintiff’s request in part.

If the Court

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finds against L M Sports in the Limitation Action, Palla may

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introduce Sue Palla, along with either Mariah Koeltl or Michelle

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Chan as witnesses during the jury trial on damages.

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make these witnesses available to L M Sports for depositions

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following the first trial, and pay the cost of the depositions.

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The depositions are to occur at a date convenient to L M Sports.

Palla must

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I.

OPINION

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A.

Legal Standard

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Federal Rule of Civil Procedure 26(a)(1)(A) requires a party

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“without awaiting a discovery request, [to] provide to the other

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parties the name and . . . address and telephone number of each

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individual . . . that the disclosing party may use to support its
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claims or defenses . . . .”

Rule 26 also includes a duty to

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timely supplement initial disclosures when the party learns “that

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in some material respect the disclosure or response is incomplete

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or incorrect.”

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penalties for a party’s failure to disclose or supplement an

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earlier response.

Fed. Rule Civ. Proc. 26(e).

Rule 37(c) imposes

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B.

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Palla was under a duty to supplement her initial disclosures,

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Analysis

apprising L M Sports of the additional witnesses she wanted to

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testify at trial.

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Notes to the Federal Rules of Civil Procedure or the cases cited

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to by Plaintiff from other district courts.

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Furthermore, the Court does not find these sources persuasive

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where they suggest a result that is contrary to what a plain

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reading of Rule 26 requires.

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Plaintiff to simply make passing references about the individuals

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she intended to use at trial.

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Defendants’ Opposition, the Court finds that Plaintiff’s failure

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to satisfy Rule 26 was not substantially justified or harmless.

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See Opp. at 9-12.

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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

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of undisclosed witnesses in all circumstances is incorrect.

The

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text of the rule plainly allows for sanctions “[i]n addition to or

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instead of” exclusion.

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The remedy fashioned by this Court falls within the discretion

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afforded by Rule 37.

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prejudice that would otherwise flow from Plaintiff’s failure to

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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
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until after the conclusion of the Limitation Action, and only upon

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a finding in favor of Plaintiff by the Court.

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allowed to introduce two of the previously-undisclosed witnesses,

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and will be required to pay the costs of the depositions.

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solution is permissible under the Federal Rules, and best protects

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the interests of each party.

Palla will only be

This

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II.

ORDER

For the reasons set forth above, the Court GRANTS in part and

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DENIES in part, Plaintiff’s Request to Add Certain Witnesses

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Previously Not Listed in Rule 26 Disclosures.

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IT IS SO ORDERED.
Dated: February 5, 2019

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