Santiago v. Rabideau et al

Filing 247

MEMORANDUM Opinion and Order: For the reasons stated in this Memorandum Opinion and Order, Plaintiff's Motion to Supplement Rule 26(a) Initial Disclosures 239 is denied. Signed by the Honorable Jeffrey T. Gilbert on 3/11/2021. Mailed notice(ber, )

Case: 1:15-cv-01856 Document #: 247 Filed: 03/11/21 Page 1 of 6 PageID #:1727

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FABIAN SANTIAGO,
Plaintiff,
v.
COLLEEN FRANKLIN, et. al.,

No. 15 CV 1856
Magistrate Judge Jeffrey T. Gilbert

Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion to Supplement Rule 26(a) Initial Disclosures. [ECF
No 239]. For the reasons discussed below, the Court denies Plaintiff’s Motion and reaffirms its
previous ruling on Defendants’ Motion in limine No. 9 [ECF Nos. 226, 230] barring the testimony
of John Baldwin, Salvador Godinez, and Randy Pfister.
I.

Procedural Background

On November 16, 2017, Plaintiff, through his assigned counsel at the time, served his initial
Rule 26(a) disclosures on Defendants. [ECF No. 114]. The three witnesses at issue here were not
included in that disclosure. Fact discovery closed on February 28, 2018. [ECF No. 119]. 1 After the
parties were unable to fully resolve this case by summary judgment or settlement, the case was set
for jury trial to begin on August 3, 2020. [ECF No. 188].
Because of the COVID-19 pandemic, however, jury trials were suspended temporarily, and
this trial was reset to November 16, 2020. [ECF No. 198]. Consistent with the Court’s pretrial

Although fact discovery closed formally on February 28, 2018, the Court allowed Plaintiff to take the
depositions of Defendants Wright and Franklin after that date. Those depositions were scheduled to be
taken in May 2018. [ECF Nos. 128, 130, 134].

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schedule at that time, the parties filed their proposed pretrial order on October 7, 2020. [ECF No.
216]. On or shortly before that date, 2 Plaintiff disclosed for the first time that he intended to call
Mr. Baldwin, Mr. Godinez, and Mr. Pfister as live witnesses at trial, or in the alternative, that he
would like to use their depositions taken in unrelated cases 3 as substantive evidence at trial in this
case. The Court granted Defendants’ Motions in limine Nos. 9 and 12 and barred the live or
deposition testimony of Mr. Baldwin, Mr. Godinez, or Mr. Pfister. In particular, as to whether
these witnesses would be permitted to appear live, the Court excluded their testimony pursuant to
Rule 37(c)(1) and concluded that Plaintiff’s untimely disclosure of the witnesses was not
substantially justified or harmless. [ECF No. 226] at 2-3.

In his response to Defendants’ Motion in limine No. 9, Plaintiff argued that Defendants in fact had notice
of Plaintiff’s intent to call Mr. Baldwin, Mr. Godinez, and Mr. Pfister on September 11, 2020, when
Defendants received Plaintiff’s draft Pretrial Order. [ECF No. 218] at 10-11. The Court sees no material
difference between Plaintiff disclosing potential new trial witnesses on September 11th or October 7th for
purposes of the Court’s analysis in this Memorandum Opinion and Order. Both were effectively on the eve
of trial in this case.
2

Plaintiff sought to use depositions taken of Mr. Godinez in Lippert v. Godinez, No. 1:13-cv-01434 (N.D.
Ill. 2013), and of Mr. Baldwin and Mr. Pfister in Mitchell v. Pfister, et al., No. 1:18-cv-02367 (N.D. Ill.
2018), as substantive evidence in this case. Mr. Godinez’s deposition was taken on December 29, 2015.
Mr. Pfister’s deposition occurred on October 29, 2019 and Mr. Baldwin’s deposition on February 11, 2020.
The latter two depositions, in fact, were taken by counsel now representing Plaintiff in this case, as he also
was representing the plaintiff in the unrelated Mitchell v. Pfister case. The Court has already ruled that
Plaintiff may not use these depositions as substantive evidence in this case, and Plaintiff does not appear to
seek review of that issue, at least now – although the present Motion may be a prelude to attempting to
subpoena these witnesses to testify at trial in this case if the Motion is granted. [ECF No. 245] at 2
(“Plaintiff, by his present Motion, does not seek to introduce those deposition transcripts, but rather to list
the three individuals as potential witnesses in this case.”). The timeline of the above depositions bears
somewhat on the issue of timeliness under Rule 26(e) to the extent Plaintiff suggests that he could not have
disclosed these witnesses any sooner than he did and therefore has good cause to supplement his disclosures
now. [ECF No. 240] at 3 (“Plaintiff thus could not have included these three anticipated witnesses on his
Original 26(a) Disclosures. Searcy v. eFunds Corp., No. 08 C 985, 2011 WL 4352415, at *2 (N.D. Ill. Sept.
16, 2011) (finding “Defendants’ duty to supplement only arose once Defendants learned of such documents
or witnesses”). Consequently, Plaintiff has good cause to now supplement his Original 26(a) Disclosures.
See Split Pivot, Inc. v. Trek Bicycle Corp., No. 12-CV-639-WMC, 2013 WL 12234526, at *2 (W.D. Wis.
May 2, 2013) (finding party had good cause to amend deadline for initial disclosures to permit
supplementation to include evidence discovered after deadline had passed).”). As discussed below in this
Memorandum Opinion and Order, whether Plaintiff could have included these witnesses in his original
Rule 26(a) disclosures is less relevant than when he learned about them, when he actually disclosed them,
and how those dates relate to the trial schedule in this case.
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Only a few days after the Court’s ruling, and two weeks before trial was to commence, jury
trials were again suspended in the Northern District of Illinois due to the COVID-19 pandemic.
Therefore, the jury trial previously scheduled for November 16, 2020 was postponed again. It has
not yet been reset, but jury trials are set to resume in this district on April 5, 2021 and the Court is
optimistic that trial in this case will proceed in the relatively near future.
II.

Analysis
The issue of Mr. Baldwin’s, Mr. Godinez’s, and Mr. Pfister’s potential live testimony arises

under Rules 26 and 37 of the Federal Rules of Civil Procedure. Under Rule 26(e)(1)(a), “a party
who has made a disclosure under Rule 26(a)…must supplement or correct its disclosure or
response in a timely manner if the party learns that in some material respect the disclosure or
response is incomplete or incorrect[.]” FED. R. CIV. P. 26(e)(1)(a). And “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence…at trial, unless the failure was substantially
justified or is harmless.” FED. R. CIV. P. 37(c)(1).
Plaintiff wants the Court to allow him to supplement his Rule 26(a) disclosures and identify
potential trial witnesses three years after his Rule 26(a) disclosures were tendered to Defendants,
more than two years after the close of fact discovery, and one month after the filing of the joint
proposed pretrial order in this case. But the facts and events outlined in Plaintiff’s own Motion
betray its untimeliness. Plaintiff did not move under Rule 26(e) to supplement his disclosures until
after the Court had already granted a motion in limine barring the testimony of those proposed new
witnesses. As discussed below, Plaintiff cannot use Rule 26(e) as a procedural backdoor for
securing the live trial testimony of Mr. Baldwin, Mr. Godinez, or Mr. Pfister under the

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circumstances of this case. The disclosure of those witnesses was untimely within the meaning of
Rule 26(e)(1)(a).
In deciding whether Plaintiff’s late disclosure of trial witnesses is substantially justified or
harmless under Rule 37(c)(1), the Court considers: (1) the prejudice or surprise to the party against
whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood
of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence
at an earlier date. Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012); see also, Musser v.
Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004). On balance, the Court finds that these
factors weigh in favor of excluding the three witnesses at issue.
As an initial matter, Plaintiff’s counsel, who was assigned as settlement assistance counsel
in this case in May 2019 [ECF No. 178] and appeared for all purposes as Plaintiff’s counsel in
September 2019 [ECF No. 187], acknowledges that he knew in October 2019 that Mr. Baldwin
had knowledge of facts that could support Plaintiff’s case here. He knew the same thing in
February 2020 as to Mr. Pfister. That is because he deposed those witnesses on those dates as
counsel for the plaintiff in an unrelated case that also involved the living conditions at Stateville
Correctional Center’s F-House. Mitchell v. Pfister, No. 1:18-cv-02367 (N.D. Ill. 2018). Plaintiff
did not say that he wanted to call these witnesses at the trial of this case until roughly seven months
and a year, respectively, after Mr. Pfister and Mr. Baldwin were deposed, and much longer after
Mr. Godinez’s deposition was taken. The Court’s decision may well have been the same as it is
today if Plaintiff had tried to supplement his Rule 26(a) disclosures earlier than he did. And the
Court hastens to add that it certainly is not ascribing any intention to hide the ball to Plaintiff or
his counsel; it is possible that neither thought about calling Mr. Godinez, Mr. Baldwin, or Mr.
Pfister as trial witnesses in this case until they were putting together the pretrial order.

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Nevertheless, the passage of time after Mr. Baldwin and Mr. Pfister were deposed in the Mitchell
case until they were disclosed as witnesses in this case does not help the argument that disclosing
them with the pretrial order was substantially justified. 4
Second, Defendants also are harmed or prejudiced by the untimely disclosures here,
particularly given that fact discovery had been closed for over two years by the time the disclosures
were made, and the time for investigating the testimony of these witnesses – let alone deposing
them or locating witnesses to rebut their testimony – has long since passed. The Federal Rules of
Civil Procedure are designed to avoid precisely the type of surprises at trial that Plaintiff is
advocating here. Nor does the fact that Mr. Baldwin, Mr. Godinez, and Mr. Pfister were once
represented by a different attorneys from the Illinois Attorney General’s Office in unrelated cases,
as Plaintiff argues, eliminate the surprise to the defense lawyers in this case of having three
witnesses disclosed on the eve of trial with no opportunity to investigate, respond to, or even
anticipate the substance of their testimony in the context of Plaintiff’s case.
There also is little opportunity for Defendants to cure the prejudice now given that fact
discovery has long been closed and depositions of new witnesses are no longer possible without
leave of court. Further, as previously mentioned, a pretrial order already has been entered [ECF
No. 227] and pretrial motions are all but resolved, leaving the parties, for all intents and purposes,
on the eve of trial. This is true even if the COVID-19 pandemic has frustrated efforts to secure a
firm trial date. To allow Plaintiff to introduce substantive testimony from three previously
undisclosed witnesses would, at this late stage, disrupt and lengthen the trial proceedings.
Including these witnesses will increase the number of Plaintiff’s potential trial witnesses by
The Court first set this case for trial in an order issued on February 11, 2020 [ECF No. 188], ironically the
same day that Mr. Pfister was deposed in the Mitchell case. The record does not show when Plaintiff or his
counsel became aware of Mr. Godinez’s deposition testimony in the Lippert case but Plaintiff says it was
after his initial Rule 26(a) disclosures were made. [ECF No. 240] at 3.
4

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approximately one-third. [ECF No. 216] at 10. It also could require the Court to allow Defendants
an opportunity to counter, if they can do so, Mr. Baldwin’s, Mr. Godinez’s, and Mr. Pfister’s
testimony potentially with new exhibits or heretofore undisclosed witnesses of their own. And that,
in turn, could delay trial in this case even more than it already has been delayed because of the
COVID-19 pandemic.
Finally, while the record does not support any inference of bad faith or willfulness in
Plaintiff’s failure to disclose these witnesses as trial witnesses earlier than he did, the other factors
discussed above weigh strongly against granting Plaintiff’s motion now. Therefore, having
considered the above-cited factors, the Court finds that Plaintiff failed to meet his burden under
Rule 37(c)(1) to show that his untimely Rule 26(a) disclosures are substantially justified or
harmless.
Accordingly, Plaintiff’s Motion to Supplement Rule 26(a) Initial Disclosures [ECF No.
239] is denied.
It is so ordered.
____________________________
Jeffrey T. Gilbert
United States Magistrate Judge
Dated: March 11, 2021

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