Watts v. 84 Lumber Company et al

Filing 528

ORDER re Plaintiff's Rule 26(a)(3) Disclosures. Signed by Judge Staci M. Yandle on 2/12/2016. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

STEVEN WATTS,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
84 LUMBER COMPANY et al.,
Defendants.

Case No. 14-CV-327-SMY-DGW

MEMORANDUM AND ORDER
YANDLE, District Judge:
In fulfilling the duty to efficiently manage its docket and in anticipation of the February
22, 2016, trial setting in this matter, the Court has reviewed Plaintiff’s Rule 26(a)(3) Disclosures
(Doc. 499). Under Rule 26(a)(3), pretrial disclosures must (emphasis added) include: “(i) the
name and, if not previously provided, the address and telephone number of each witness…(ii) the
designation of those witnesses whose testimony the party expects to present by deposition…and
(iii) an identification of each document or other exhibit, including summaries of other evidence –
separately identifying those items the party expects to offer…” Fed. R. Civ. P. 26(a)(3)(A).
Further, Rule 37(c) enforces the disclosure requirements of Rule 26 and states, in relevant
part:
If 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 on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”
The Seventh Circuit has repeatedly held that “the sanction of exclusion is automatic and
mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either

1

justified or harmless.” See, e.g., David v. Caterpillar Inc., 324 F.3d 851, 857 (7th Cir. 2003)
(quoting Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998)); accord Stewart Title
Guaranty Co. v. Residential Title Servs., Inc., 607 F. Supp. 2d 959, 964 (E.D. Wis. 2000).
In his disclosures, under the designation, “Documents or Other Exhibits,” Plaintiff seeks
to “reserve the right” to call numerous un-named witnesses at trial. However, Plaintiff cannot
reserve to himself a right he does not have under Rule 26. The Court finds that the vague and
boilerplate identification of categories of potential witnesses is insufficient and inconsistent with
the spirit and purpose of Rule 26. The Court further finds that Plaintiff’s failure to comply with
Rule 26(a)(3) cannot be substantially justified and is not harmless. Discovery in this matter is
closed and the time to depose any newly identified “may call” witness has long passed.
Accordingly, pursuant to Rule 37(c), the Court STRIKES that portion of Plaintiff’s Rule
26(a)(3) Disclosures designated as “Documents or Other Exhibits” and he shall be prohibited
from presenting any witnesses live or by deposition testimony at trial not specifically named and
identified in compliance with Rule 26(a)(3).
IT IS SO ORDERED.
DATED: February 12, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

2