Law Debenture Trust Company of New York v. WMC Mortgage, LLC et al
RULING (see attached) denying Plaintiff's 228 Emergency Motion to Strike Previously Undisclosed Witnesses. The six disputed witnesses will be permitted to testify at trial, provided that Defendant complies with the conditions set forth in the attached Ruling. If these conditions are not satisfied in respect of a particular individual, that individual will not be permitted to testify. Signed by Judge Charles S. Haight, Jr. on December 7, 2017. (Pskowski, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TMI TRUST COMPANY, solely in its
capacity as Separate Trustee of the
Securitized Asset Backed Receivables LLC
Civil Action No. 3:12-cv-1538 (CSH)
December 7, 2017
WMC MORTGAGE, LLC f/k/a WMC
RULING ON PLAINTIFF'S MOTION TO STRIKE CERTAIN WITNESSES
HAIGHT, Senior District Judge:
Plaintiff TMI Trust Company ("TMI") has filed a motion [Doc. 228] to strike "previously
undisclosed witnesses" from the list of trial witnesses submitted by Defendant WMC Mortgage, LLC
("WMC"). Defendant opposes that motion. Counsel for the parties submitted briefs and argued the
motion during the course of a hearing before the Court on December 5, 2017. This Ruling resolves
Trial in this case is scheduled to begin on January 16, 2018. WMC filed a witness list dated
November 22, 2017 [Doc. 229-3]. The list "identifies the following witnesses that it may call at the
trial in this matter." The list refers to 25 fact witnesses and four expert witnesses. TMI's motion
sought an order striking eight of the fact witnesses. TMI contends it is entitled to that relief because
"the Federal Rules of Civil Procedure prohibit a party from offering a witness at trial that [sic] was
not previously disclosed in accordance with Fed. R. Civ. P. 26." Doc. 228 at 1. WMC's opposing
papers withdraw two of the eight individuals from the witness list. The remaining contest concerns
the other six individuals. They are all current employees of WMC.
Rule 26, upon which TMI relies, contains two provisions with respect to disclosure of
individuals. Rule 26(a)(1), captioned "Initial Disclosure," requires each party, "without awaiting a
discovery request," to provide to the other parties the name "of each individual likely to have
discoverable information . . . that the disclosing party may use to support its claims or defenses,
unless the use would be solely for impeachment." Rule 26(a)(3), captioned "Pretrial Disclosures,"
provides in Rule 26(a)(3)(A)(i) that each party must provide to the other parties the name "of each
witness – separately identifying those the party expects to present and those it may call if the need
arises." Rule 26(a)(3)(B) provides that "Unless the court orders otherwise, those disclosures must
be made at least 30 days before trial."
In the case at bar, WMC's listing of the six contested individuals as witnesses complied with
Rule 26(a)(3), since they were identified as witnesses almost two months before the trial will start,
as opposes to the 30 days allowed by the Rule. However, TMI contends that WMC violated Rule
26(a)(1) by not sooner identifying these individuals as having information WMC "may use to support
its claims or defenses," and that WMC's failure in that regard is sufficiently egregious to justify
preclude them from testifying at the trial (notwithstanding WMC's timely listing under Rule
Assuming without deciding that a party's delay in identifying individuals under Rule 26(a)(1)
may be so extreme, and the resulting prejudice to other parties so severe, that an individual may be
precluded from testifying at trial even if timely listed as a witness under Rule 26(a)(3), this is not a
case where that extreme sanction should be meted out to WMC, the disclosing party. I accept that
at an earlier date, WMC could, even arguably should, have identified these six individuals as
potential witnesses or sources of probative evidence on WMC's claims or defenses. On the other
hand, as this complex and difficult case draws closer to trial, the boundaries of intended or
anticipated proof begin to take on the characteristics of (to combine metaphors) a moving target or
a moveable feast. For example: The evidence that WMC contemplates eliciting from two of the
contested six (Ken Huber and Ian Mitchell) is provoked or inspired by testimony given by a TMI
witness, David Gitson, who the Court allowed (over WMC's objection) to give a de bene esse
deposition which was taken in California just last Friday, December 1. A number of district courts
subscribe to the philosophy that "[p]reclusion of evidence is generally a disfavored action," Preuss
v. Kolmar Labs, Inc., 970 F. Supp. 2d 171, 175 (S.D.N.Y. 2013) (citing and quoting cases), a
sentiment I share, as one charged in this bench trial with fashioning a just result (as opposed to
pursuing a tactical advantage).
The just result on this motion, I conclude, is to allow these individuals to testify as witnesses
at trial, if between now and then WMC complies with conditions whose purpose is to prevent unfair
prejudice to TMI. Those conditions are as follows:
* WMC must forthwith provide counsel for TMI with a detailed written description, in the
form of an offer of proof, with respect to the testimony WMC contemplates eliciting from each
individual if called as a witness for WMC at trial.
* If requested by counsel for TMI, WMC must present each individual for a deposition by
TMI, at a place reasonably requested by TMI, with WMC to bear all expenses of the deposition
except for TMI's attorneys' fees. Those depositions must be scheduled in a manner that does not
unreasonably interfere with the preparations of TMI's counsel for trial.
The Court relies upon the able attorneys for these parties, acting in characteristic good faith,
to agree upon the manner in which these conditions will be satisfied. If disputes arise, the Court will
If these conditions are not satisfied in respect of a particular individual, that individual will
not be permitted to testify at trial.
The result of this Ruling, entered in the exercise of the Court's discretion, is that Plaintiff's
motion to strike the names of the individuals in question from Defendant's witness list is DENIED.
This aspect of the case will proceed in a manner consistent with this Ruling.
It is SO ORDERED.
Dated: New Haven, Connecticut
December 7, 2017
/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge
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