Airborne Athletics, Inc. v. Shoot-A-Way, Inc.
MEMORANDUM OPINION AND ORDER: 1. Defendant's Motion to Strike the Declaration of Harold Krings [Doc. No. 105] is DENIED in part, and GRANTED in part; 2. Defendant may take the deposition of Harold Krings and file supplemental briefing, to which Plaintiff may respond, as set forth in the order, within the next 45 days (Written Opinion). Signed by Judge Susan Richard Nelson on 5/30/12. (LPH)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Airborne Athletics, Inc.,
Civil No. 10-3785 (SRN/JJK)
David R. Fairbairn, Catherine Shultz and Stuart A. Nelson, Kinney & Lange, PA, 312 South
Third Street, Minneapolis, Minnesota 55415, for Plaintiff
Alan W. Kowalchyk, Eric R. Chad and Heather Kliebenstein, Merchant & Gould, PC, 80 South
Eighth Street, Suite 3200, Minneapolis, Minnesota 55402, for Defendant
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Defendant’s Motion to Strike the Declaration of
Harold Krings [Doc. No. 105]. For the reasons set forth herein, Defendant’s motion is denied in
part, and granted in part.
Defendant Shoot-A-Way, Inc. (“Shoot-A-Way”) moves to strike the Declaration of
Harold Krings. Plaintiff Airborne Athletics, Inc. (“Airborne”) submitted Krings’ Declaration in
support of its Memorandum in Opposition to Defendant’s Motion for Summary Judgment on
Willfulness. Defendant argues that Plaintiff failed to identify Krings in its disclosures pursuant
to Fed. R. Civ. P. 26(a). Shoot-A-Way contends that it had no notice that Airborne intended to
use Krings’ testimony to support its claims until Plaintiff filed its opposition memorandum,
along with Krings’ Declaration. After Shoot-A-Way voiced its opposition to the use of Krings’
Declaration, Airborne filed a supplemental Rule 26(a) disclosure listing Krings. As a result of
this late disclosure, Shoot-A-Way argues that it has been harmed. Specifically, because Krings
was not previously disclosed, Shoot-A-Way did not depose him and argues that it is unprepared
to counter Krings’ Declaration and accompanying exhibit. Defendant therefore requests that the
Court strike Krings’ Declaration and exhibit and not consider them in ruling on the pending
summary judgment motion. In addition, Shoot-A-Way argues that Airborne made the late
disclosure of Krings in bad faith and requests that the Court award sanctions pursuant to Fed. R.
Civ. P. 37(c)(1).
Airborne responds that it supplemented its disclosures in a timely fashion and that the
subject of Krings’ Declaration – an incident occurring on August 5, 2000 - has been made
known to Shoot-A-Way during the discovery process. In addition, Airborne argues that its
failure to initially disclose Krings was substantially justified and harmless under Rule 37.
Specifically, Airborne contends that it only learned in late April that Krings would be willing to
testify. Moreover, Plaintiff argues that it is not clear that Shoot-A-Way would have deposed
Krings if he had been listed on the initial Rule 26 disclosures. At the very least, Airborne argues
that Krings’ testimony should be permitted for impeachment purposes, as such testimony is not
subject to the same disclosure requirements of Rule 26(a).
The Court finds that the failure to disclose Krings consistent with the parties’ initial Rule
26(a) disclosure requirements resulted in harm and prejudice to Defendant Shoot-A-Way.
Shoot-A-Way had no opportunity to make a meaningful decision about deposing Krings because
Airborne failed to identify him as a witness until nearly five months after the close of discovery.
Shoot-A-Way was therefore unable to counter the information presented in Krings’ Declaration
in connection with the pending summary judgment motion. Because the non-disclosure does not
appear to have been made in bad faith, however, sanctions are not warranted.
The Court denies Defendant’s request to strike Krings’ testimony. However, in order to
cure the harm caused by the late disclosure, the Court will permit Shoot-A-Way to take Krings’
deposition and to file supplemental briefing, limited to 5 pages, and limited to information
obtained in Krings’ deposition, his Declaration and accompanying exhibit. Airborne will be
permitted to file a responsive supplemental memorandum, limited to 5 pages, and limited to the
arguments and issues raised in Shoot-A-Way’s supplemental memorandum. Airborne’s
response will be due one week after the filing of Shoot-A-Way’s supplemental memorandum.
The deposition and filing of supplemental briefing shall occur within 45 days.
THEREFORE, IT IS HEREBY ORDERED THAT:
For the reasons set forth herein, Defendant’s Motion to Strike the Declaration of
Harold Krings [Doc. No. 105] is DENIED in part, and GRANTED in part;
Defendant may take the deposition of Harold Krings and file supplemental
briefing, to which Plaintiff may respond, as set forth herein, within the next 45
Dated: May 30, 2012
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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