Hannah v. Walmart

Filing 386

ORDER granting 378 Motion to Quash/Preclude; granting 383 Motion to Preclude. Signed by Judge Victor A. Bolden on 2/22/2017. (Williams, C)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
MICHAEL BARHAM,
Plaintiff,

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v.
WAL-MART STORES, INC. and
WAL-MART STORES EAST, L.P.,
Defendants.

3:12-cv-01361 (VAB)

RULING ON MOTIONS TO PRECLUDE
Plaintiff, Michael Barham, and Defendants, Wal-Mart Stores, Inc. and Wal-Mart Stores
East, L.P. (together “Wal-Mart”), are scheduled to begin a jury trial on February 28, 2017.
Scheduling Order, ECF No. 369. The final pre-trial conference was held today, February 22,
2017.
On February 21, 2017, Mr. Barham filed a motion to quash and/or preclude the trial
deposition testimony of Trent Burner, one of Defendants’ witnesses, who is currently scheduled
to be deposed on February 24, 2017. Emergency Mot., ECF No. 378. On February 22, 2017, the
same day of the final pre-trial conference, Defendants filed a notice seeking to amend the witness
list included in the parties’ February 3, 2017 Joint Trial Memorandum by removing Kakisha
Smith and adding Ronald Ealey, see Am. Witness List, ECF No. 380, to which Mr. Barham
objected during the final pre-trial conference. Oral Mot., ECF No. 383. For the reasons outlined
below, Mr. Barham’s [378] and [382] motions are GRANTED.
I.

Motion to Quash/Preclude Trial Deposition Testimony of Trent Burner [ECF
No. 378]

On February 6, 2017, Defendants notified Plaintiff that they intended to conduct a trial
deposition of Trent Burner in Arkansas the week before jury trial. Pls. Mem. in Supp. at 1, ECF
No. 387-1. The Joint Trial Memorandum submitted by the parties on February 3, 2017 lists Mr.

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Burner as a trial witness for Defendants, and the Joint Trial Memorandum notes Plaintiff’s
objection to the potential inclusion of Mr. Burner’s deposition testimony at the jury trial. After
receiving notice that Defendants intended to go forward with the deposition of Mr. Burner on
February 24th, 2017, Plaintiff filed a motion to quash the deposition and preclude the
introduction of the deposition testimony. Plaintiff’s motion is granted.
As of September 30, 2016, the jury trial as to Mr. Barham has been scheduled for late
February, 2017, allowing Defendants several months to select an appropriate date for the trial
deposition of Mr. Burner. Nonetheless, Defendants chose to schedule this out-of-state deposition
the week before trial. Furthermore, Defendants indicated at the final pre-trial conference that the
substance of Mr. Burner’s testimony would focus on the corporate reorganization that led to Mr.
Barham’s termination. Defendants, however, sought to preclude testimony on this very topic in
their [306] motion in limine, claiming that such testimony would be irrelevant to the remaining
claims in this case. Defs. Mem. in Supp. of Mot. in Limine at 4-5, ECF No. 306.
Under Rule 32 of the Federal Rules of Civil Procedure, deposition testimony may be used
at trial where “the party was present or represented at the taking of the deposition or had
reasonable notice of it.” Fed. R. Civ. P. 32(a)(1)(A). “[T]he reasonableness of notice must be
determined in light of the facts and circumstances of the individual case.” Davidson v. Dean,
204 F.R.D. 251, 256 (S.D.N.Y. 2001). “When a party opposes a trial deposition scheduled after
the close of discovery ... the court should consider a variety of factors in making this
determination, including the unavailability of the witness for trial, the potential for prejudice to
the opposing party, and whether the deposing party knew the information the potential witness
would testify to prior to the deposition…. Special emphasis should be placed on the potential for

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prejudice.” Morales v. N.Y. Dep't of Labor, No. 06-CV-899 (MAD), 2012 WL 2571292, at *2
(N.D.N.Y. July 3, 2012) (internal quotations and marks omitted).
The Court concludes that it would be unduly prejudicial to allow the trial deposition to
proceed only two business days before the commencement of jury trial, particularly where, as
here, the proposed testimony would have limited probative value with respect to the claims
before the jury in this case. Consistent with this Court’s ruling on Defendants’ [306] Motion in
Limine, see Order, ECF No. 376, and considering the difficulties presented to Plaintiff’s counsel
by scheduling this deposition the week before the scheduled jury trial, this testimony would be
unfairly prejudicial at this late stage and is properly excluded.
Mr. Barham’s [378] Motion to Quash / Preclude is granted. Mr. Burner’s trial deposition
testimony will not be permitted during the upcoming jury trial in this matter.
II.

Motion to Preclude Testimony of Ronald Ealey [ECF No. 383]

On February 22, 2017, more than three weeks after filing the Joint Trial Memorandum
and within hours of the scheduled final pre-trial conference in this case, Defendants filed a notice
amending the witness list originally provided with their Joint Trial Memorandum. Am. Witness
List, ECF No. 380. In this list, Defendants sought to exchange one proposed witness, Kakisha
Smith, for another witness, Ronald Ealey.1 Id.
Defendants argue that, in light of the Court’s [381] Order denying Mr. Barham’s motion
to preclude several of Defendants’ late-disclosed witnesses, including Kakisha Smith, the late
insertion of Mr. Ealey as a trial witness is immaterial. Defendants specifically contend that,
because Mr. Ealey was included in Defendants’ August 5, 2016 Trial Memorandum, Mr. Barham

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According to Defendants, his omission from the February 3, 2017 Joint Trial Memorandum was inadvertent.

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had sufficient notice of Mr. Ealey’s potential testimony at the February 2017 jury trial. The
Court disagrees.
Defendants insist that, because Mr. Ealey was listed in Defendants’ initial Trial
Memorandum in August 2016, he is in the same position as the three witnesses who were
permitted under the Court’s [381] Order. However, it is undisputed that Mr. Ealey was not listed
in the parties’ February 3, 2017 Joint Trial Memorandum, which provides the operative witness
list in this case. Until today, Plaintiff had no notice that Defendants intended to call Mr. Ealey as
a witness during the February 2017 jury trial in connection with Mr. Barham’s claims, and
Plaintiff’s counsel has not had an opportunity to prepare for inclusion of this testimony at trial.
Thus, the Court concludes that it would be inappropriate to grant leave to amend the
witness list at this stage. See Napolitano v. Compania Sud Americana De Vapores, 421 F.2d
382, 386 (2d Cir. 1970) (affirming denial of leave to amend witness list, noting that “Defendant's
practice, in a case which had been pending for four years, of waiting until four days prior to the
trial date to identify his witnesses by name clearly violates both the letter and the spirit of [Rule
16]”); Sartin v. GT Payroll Sys., 403 F. App'x 569 (2d Cir. 2010) (affirming district court’s
“denial of Appellant's application to amend his witness list on the eve of trial”); Eberle v. Town
of Southampton, 305 F.R.D. 32, 36 (E.D.N.Y. 2015) (denying leave to amend witness list where
addition of previously undisclosed witnesses “would disrupt the orderly and efficient progression
of this case”).
Plaintiff’s [383] motion to preclude the testimony of Ronald Ealey is granted. Defendants
are not permitted to amend their witness list at this time.

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III.

Conclusion

Plaintiff’s [378] Motion to Quash / Preclude is GRANTED. Plaintiff’s [383] Motion to
Preclude is GRANTED.

SO ORDERED this 22nd day of February, 2017 in Bridgeport, Connecticut.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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