Allstate Insurance Company v. Barnett et al

Filing 174

ORDER re 165 Plaintiff's Supplemental Witness List. Signed by Judge Edward M. Chen on 11/16/2011. (emclc1, COURT STAFF) (Filed on 11/16/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALLSTATE INSURANCE COMPANY,

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For the Northern District of California

United States District Court

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No. C-10-0077 EMC

Plaintiff,
ORDER RE PLAINTIFF’S
SUPPLEMENTAL WITNESS LIST

v.
RICHARD BARNETT, et al.,

(Docket No. 165)

Defendants.
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On November 14, 2011, Allstate filed a supplemental witness list, in which it identified five

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additional witnesses. Four of these witnesses (Chris Kelley, David Pearson, Debra Rivas, and Lyle

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McGaughey) are neighbors of Mr. Barnett, each of whom would testify that they heard three

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gunshots, except for Mr. Kelley who would testify that he heard two to three gunshots. The last

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witness is Officer Wayne Hanson, who would testify that he recovered two live bullets from the

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cylinder of Mr. Barnett’s weapon and found three shell casings in the cylinder. Mr. Barnett has

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objected to each witness because none was identified in Allstate’s disclosures, none was identified

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until far beyond the discovery cut-off, none was identified until after the final pretrial conference,

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and none has been deposed. In response, Allstate argues that the witnesses should be allowed to

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testify because, even though their identities were contained in police reports, Mr. Barnett did not

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produce those reports until after discovery had already closed; moreover, Mr. Barnett did not

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supplement his initial disclosures to identify them as witnesses he would call at trial which would

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have allowed Allstate to ask for a reopening of discovery.

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The Court hereby rules as follows.

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(1)

Mr. Barnett’s objection to the neighbor witnesses is SUSTAINED in part and

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OVERRULED in part. The Court shall not allow the neighbor witnesses to provide substantive

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testimony as a part of Allstate’s case-in-chief. Even though Mr. Barnett may not have produced the

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police reports until after the close of discovery, nothing barred Allstate from obtaining copies of

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those reports before the discovery cut-off. Moreover, Allstate has known, basically since the outset

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of this case, that Mr. Barnett contends he fired only two bullets from his weapon, with both bullet

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casings being recovered from the engine compartment of Mr. Alexander’s car. Thus, once Mr.

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Barnett provided the police reports, which identified at least the Bishops as saying they heard only
two gunshots, Allstate had an incentive to talk to other neighbors of Mr. Barnett.

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For the Northern District of California

United States District Court

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The Court, however, shall allow the neighbor witnesses to testify solely for purposes of

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impeachment (e.g., if Mr. Barnett testifies that he fired his gun only twice or if the Bishops testify

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that they heard only two gunshots). See 4-608 Weinstein’s Fed. Evid. § 608.20[3][a] (noting that

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Federal Rule of Evidence 608(b) bars only extrinsic evidence of impeachment where impeachment

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is by character evidence and not by contradiction). Under Federal Rule of Civil Procedure 26(a)(3),

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pretrial disclosures of witnesses must be made under the timeline ordered by the Court unless

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offered solely for impeachment. Moreover, it is fair for Allstate to offer the evidence for purposes

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of impeachment given that Mr. Barnett should have identified the Bishops as witnesses prior to the

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final pretrial conference. Finally, given the very limited nature of the neighbor witnesses’

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testimony, Mr. Barnett will still be able to present an adequate defense within the eight hours

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allocated by the Court.

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(2)

Mr. Barnett’s objection to Officer Wayne Hanson is OVERRULED. Mr. Barnett

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has already identified Officer Hanson as one of the officers who conducted an investigation into the

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shooting incident. Under these circumstances, Officer Hanson’s testimony would not be unduly

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prejudicial to Mr. Barnett in spite of the late identification by Allstate.

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IT IS SO ORDERED.

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Dated: November 16, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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