Watkins Incorporated v. McCormick and Company, Incorporated
Filing
152
ORDER granting 139 Defendant McCormick & Company, Incorporated's Motion to Strike Watkins Incorporated's Third Amended Initial Disclosures and Exclude an Untimely Disclosed Witnesses. (Written Opinion) Signed by Magistrate Judge Elizabeth Cowan Wright on 2/6/2023. (TIN)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Watkins Incorporated,
Case No. 15-cv-2688 (DSD/ECW)
Plaintiff,
v.
McCormick and Company, Incorporated,
ORDER
Defendant.
This case is before the Court on “Defendant McCormick & Company,
Incorporated’s Motion to Strike Watkins Incorporated’s Third Amended Initial
Disclosures and Exclude an Untimely Disclosed Witnesses [sic]” (“Motion”). (Dkt. 139.)
For the reasons stated below, the Court grants the Motion.
I.
BACKGROUND
On June 9, 2015, Plaintiff Watkins Incorporated filed this action in this Court
asserting counts for unfair competition and misleading and deceptive advertising,
promotion, and trade practices under the Lanham Act and various states’ laws with regard
to Defendant McCormick & Company, Incorporated’s alleged “nonfunctional slack-fill”
of its black ground pepper tins. (See generally, Dkt. 1.)1 “Slack-fill is the difference
between the actual capacity of a container and the volume of product contained therein.”
(Id. ¶ 28 (citing 21 C.F.R. § 100.100).) Plaintiff, which produces and sells black ground
pepper, further alleged that “[o]n information and belief, consumers have relied upon,
1
Unless otherwise noted, page number citations are to the CM/ECF pagination.
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and are continuing to rely upon, the traditional size of the tins as the basis for making a
purchasing decision and believe the tins contain the same traditional fill rather than the
reduced slack-fill that they cannot see in the nontransparent tin.” (Id. ¶¶ 1, 25.)
On August 10, 2015, Defendant filed a Notice of Motion for Transfer Before the
Judicial Panel on Multidistrict Litigation (“JPML”), and on August 13, 2015, the parties
filed a stipulation to stay this case pending resolution of the motion to transfer by the
JPML. (Dkts. 21, 22.) On August 14, 2015, United States District Judge David S. Doty
approved the parties’ stipulation, and as a result, this case was stayed and thereafter
transferred to the JPML, District of Columbia, which remanded the case back to this
Court on December 27, 2019. (Dkts. 23, 25, 26.)
On July 16, 2020, a Pretrial Scheduling Order was entered in this case, setting
several deadlines and requiring the parties to make any updates to their initial disclosures
by August 3, 2020 and to complete fact discovery by September 1, 2020. (Dkt. 34 at 2.)
On August 3, 2020, Plaintiff filed a Motion to Compel Discovery, which was denied on
August 24, 2020. (Dkts. 36, 52.) The order denying that motion permitted Defendant to
“file a proposal regarding the limitations for any additional fact discovery Defendant
believe[d was] necessary,” leading to Defendant to filing the proposal on September 7,
2020 as to Plaintiff’s “‘disgorgement’ claim under the Lanham Act.” (Dkt. 52 at 13; Dkt.
55.) On September 15, 2020, a First Amended Pretrial Scheduling Order was entered,
leaving the deadline for updates to initial disclosures as August 3, 2020, and modifying
the deadline for fact discovery to December 15, 2020 to the extent it related to follow-up
discovery flowing from Plaintiff’s Motion to Compel Discovery. (Dkt. 57 at 3.)
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On October 13, 2022, Defendant sought to obtain dates to schedule a hearing
regarding a motion to strike Plaintiff’s Third Amended Initial Disclosures and to exclude
witnesses and was ordered to first move to amend the First Amended Pretrial Scheduling
Order given that the deadline for filing non-dispositive motions had long passed. (Dkt.
132.) On November 14, 2022, this case was reassigned to the undersigned, who held a
status call regarding Defendant’s anticipated motion to strike on November 17, 2022.
(Dkts. 135, 137.) During that status call, the parties stipulated to, and the Court
approved, the filing of the motion to strike without an amendment of the First Amended
Pretrial Scheduling Order in view of the fact that the motion was based on disclosures
served in September 2022. (Dkt. 137.) On December 2, 2022, this Motion followed.
The disputed aspect of the Third Amended Initial Disclosures is paragraph (j), the
disclosure of Jacquelynn Karau, a Quality Assurance Manager at Plaintiff, who
performed analyses of Plaintiff’s and Defendant’s pepper tins in May and June 2015,
around the same time Plaintiff filed this lawsuit. (Dkt. 140 at 4, 68-11 & n.2; Dkt. 142-1,
Ex. 1 at 2; Dkt. 142 ¶ 2.h-j; Dkts. 142-1 at 45-63 (Exs. 8-10).) The documents at issue
(“the Documents”) constitute photos of Karau’s analyses, the underlying data, and three
emails referencing the analyses, data, and photos, including one email marked as an
exhibit by Defendant when deposing Plaintiff’s employee Michelle Fehr. (See Dkt. 142
¶ 2.a; Dkt. 142-1, Ex. 1 at 2; Dkt. 142-1 at 45-63 (Exs. 8-10).) They describe the
methodology used by Karau when measuring and analyzing the pepper tins and contain
Karau’s handwritten notes regarding her measurements and her findings and conclusions.
(See Dkt. 142-1, Ex. 1 at 2; Dkt. 142-1 at 45-63 (Exs. 8-10).) The Documents include
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statements such as: “[h]ad to tap tin to refill after weighing,” “[d]id not tap tin to refill
after weighing,” “had to tap tin during refiling,” “did not tap tin during refiling,” “[t]he
percent retained per screen/found in the pan indicate the coarseness of the pepper. A
higher percentage found in the pan indicates a finer pepper,” and “[c]onclusion: no
appreciable difference between the 8 oz and 6 oz pepper.” (Dkt. 142-1 at 45-63 (Exs. 810.)
According to Plaintiff’s Third Amended Initial Disclosures, “[a]ny testimony will
be limited to foundation of these documents, if necessary.” (Dkt. 142-1, Ex. 1 at 2.)
However, Defendant asks the Court, pursuant to Federal Rule of Civil Procedure
37(c)(1), to strike Plaintiff’s Third Amended Initial Disclosures and exclude Karau’s trial
testimony on the grounds that Karau’s anticipated testimony will go beyond foundation
and authentication. (Dkt. 139 at 1; Dkt. 140 at 1.) Defendant also contends that
permitting Karau to testify would be highly prejudicial and that the prejudice cannot be
cured by deposing Karau. (Dkt. 140 at 10-11.) Trial is set for May 1, 2023, with motions
in limine due on April 10, 2023 and responses due on April 17, 2023. (Dkt. 131 at 1-3.)
II.
LEGAL STANDARD
Rule 26 of the Federal Rules of Civil Procedure governs the scope of discovery.
See Fed. R. Civ. P. 26. Under Rule 26(a)(1)(A)(i), a party to a litigation must provide
other parties “the name, and if known, the address and telephone number of each
individual likely to have discoverable information--along with the subjects of that
information--that the disclosing party may use to support its claims or defenses, unless
the use would be solely for impeachment[.]” Fed. R. Civ. P. 26(a)(1)(A)(i). Pursuant to
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Rule 26(e), a party that has made a disclosure under Rule 26(a) or that has responded to
discovery requests, 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, and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in writing.” Fed.
R. Civ. P. 26(e)(1)(A).
“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.” Fed. R. Civ. P. 37(c)(1). “Because Rule 37(c) sanctions are mandatory, the
rule contains exceptions for ‘substantially justified’ or ‘harmless' violations to ‘avoid
unduly harsh penalties that may result from an inflexible application of the
Rule.’” United States ex rel. Fesenmaier v. Cameron-Ehlen Grp., Inc., No. 13-CV-3003
(WMW/DTS), 2021 WL 101193, at *22 (D. Minn. Jan. 12, 2021) (quoting Transclean
Corp. v. Bridgewood Servs., Inc., 101 F. Supp. 2d 788, 795 (D. Minn. 2000)).
“[A] critical consideration [is] the prevention of unfair surprise.” Transclean, 101
F. Supp. 2d at 795 (citing Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284
(8th Cir. 1995)). District courts therefore consider four factors when determining
whether a violation was substantially justified or harmless under Rule 37(c): “‘[1] the
importance of the excluded material; [2] the explanation of the party for its failure to
comply with the required disclosure; [3] the potential prejudice that would arise from
allowing the material to be used . . .; and [4] the availability of a continuance to cure such
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prejudice.’” Fesenmaier, 2021 WL 101193, at *22 (quoting Transclean, 101 F. Supp. 2d
at 795-96); see also Bison Advisors LLC v. Kessler, No. CV 14-3121 (DSD/SER), 2016
WL 3525900, at *2 (D. Minn. Jan. 21, 2016) (same factors). “[T]he exclusion of
evidence is a harsh penalty and should be used sparingly.” Wegener v. Johnson, 527 F.3d
687, 692 (8th Cir. 2008) (quoting ELCA Enters. v. Sisco Equip. Rental & Sales, 53 F.3d
186, 190 (8th Cir. 1995)).
III.
A.
ANALYSIS
The Parties’ Arguments
In its brief, Defendant seeks exclusion because: (1) the disclosure of Karau on
September 26, 2022 is untimely, “as it comes over two years after both the close of fact
discovery and the Court’s deadline to amend disclosures”; (2) there is no justification for
the belated disclosure; and (3) allowing Karau to testify would be highly prejudicial to
Defendant. (Dkt. 139 at 1; Dkt. 140 at 7-11.) Defendant contends that, contrary to
Plaintiff’s contention, Karau’s anticipated testimony about the Documents is well beyond
“foundational” in nature. (Dkt. 140 at 5, 8-9.)
Defendant notes that it served an interrogatory request asking Plaintiff to
“[i]dentify all persons known by [Plaintiff] to have any knowledge regarding any of the
material facts at issue in this case and describe the nature of each person’s knowledge,”
yet Plaintiff failed to disclose Karau until the Third Amended Initial Disclosures. (Id. at
5-6 (citing Dkt. 142; Dkt. 142-3, Ex. 3 at 4-5).) Defendant contends that allowing Karau
to testify would be problematic as she would “be in a position to offer substantive
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evidence allegedly relevant to the fill level of McCormick’s tins, one of the fundamental
issues in this litigation.” (Id. at 11.)
Plaintiff responded in its December 9, 2022 opposition that Karau’s testimony
would be for foundational and authentication purposes only. (Dkt. 144 at 1, 5, 14.)
Plaintiff notes that all of the Documents were previously produced to Defendant at the
beginning of this litigation, and one was marked by Defendant during a deposition. (Id.
at 1, 3, 5-6, 10.) Plaintiff claims that the other two documents “show on their face that
Ms. Karau took the measurements and the photographs contained in the documents” and
that Karau “will testify only to the extent necessary for the three documents identified in
the Amended Disclosure to be admitted into evidence at trial.” (Id. at 1-2, 9-10, 16.)
Plaintiff also stated, however, that “the matter ‘to which Ms. Karau might testify’ is
nothing more than the foundation and authenticity of the three documents, e.g., that she
took the pictures and accurately weighed the tins.” (Id. at 14 (emphasis added).)
As to prejudice, Plaintiff contends that four recipients of the Documents have been
deposed by Defendant and each could have been questioned about them during their
depositions. (Id. at 10.) According to Plaintiff, excluding Karau as a witness would
result in exclusion of the Documents and would be a harsh remedy as the untimely
disclosure is harmless. (Id. at 1-2, 8-14, 17.) Plaintiff contends that it has offered Karau
for deposition to cure any potential prejudice to Defendant, but that Defendant has
refused to depose Karau. (Id. at 2, 12-13.)
On January 13, 2023, the Court held a hearing on the Motion (“January 2023
Hearing”) and took the Motion under advisement. (See Dkts. 146, 149.) At the hearing,
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it became clear that Defendant is not opposed to Karau authenticating the Documents, but
rather, argued that Karau’s testimony would likely encompass the analyses that she
performed on Defendant’s pepper tins, the conclusions she formed, and the reliability of
her analyses. Specifically, Defendant contended that the Documents are substantive in
nature and because they contain hearsay information, inclusive of Karau’s measurements,
findings, and conclusions, which only Karau can testify to, permitting Karau’s testimony
would inevitably require her to provide testimony that goes beyond foundation and
authentication. (Dkt. 149 at 3:20-11:23.)2 Defendant also argued that while it does not
oppose stipulating to the Documents for purposes of authentication, it cannot stipulate to
their admissibility because the Documents contain substantive evidence and hearsay
information. (Id. at 11:19-13:2, 29:1-30:13.)
Plaintiff maintained that allowing Karau to testify would be harmless and nonprejudicial. (Id. at 14:8-28:16.) In response to the Court’s questioning about Defendant’s
anticipated hearsay objection as to the Documents, Plaintiff stated:
Well, I think I get around it – it’s for present sense. She took the
measurements and she took the pictures and then she recorded that. There’s
nothing else in between there. I think it comes in that way. And the
photographs and the measurements, I think, are a little different. I think they
both come in, but clearly with the photographs she’s saying she took the
pictures. That authenticates the photographs. I don’t think there’s much more
to go there.
(Id. at 20:12-20.)
2
Citations to transcripts are given in a transcript page:line number format.
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In response to the Court’s question: “do you envision her testifying about, for
example, how she conducted the testing and the measurements she took?”, Plaintiff
responded:
I am going to have her testify – and I’m not trying to evade the question. I
am going to have her testify to nothing more than what I need to do, as when
at trial, based upon objections from Counsel, what I need to do to get these
admitted.
In response to objections from McCormick’s counsel, if I have to go through
and say, “What tins did you look at?” -- and we see them there – “What did
you do?” and “Does this document” – “Did you record correctly your
measurements?”
If I have to go through that, I will go through that to lay a foundation, but if
I don’t have to go through that, I'll just have them admitted.
(Id. at 20:21-21:11.)
In other words, if Defendant’s counsel objects to the Documents on grounds of
hearsay, Plaintiff’s counsel intends to elicit testimony from Karau about her testing and
the results. Further, Plaintiff’s counsel made clear that if Defendant objected to the
Documents’ admissibility, he would elicit testimony that Karau performed the testing
“properly” or seek agreement from Defendant that there is a “reasonable basis” and
“some support behind what’s in -- what the substance of the document says.” (Id. at
24:25-26:17.) Plaintiff’s counsel also made clear that he believes “foundation” would
include Karau testifying that she “took [the measurements] in a way that is reliable and is
correct.” (Id. at 26:18-23.)
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B.
Exclusion Is Warranted Because Plaintiff Seeks to Elicit Karau’s Testimony
About the Reliability and Accuracy of the Measurements Described in the
Documents, Resulting in Harm to Defendant
Regardless of Plaintiff’s description of Karau’s anticipated testimony as
“foundational” in the Third Amended Initial Disclosures, the hearing made clear that
Plaintiff really seeks to have Karau testify to overcome all challenges to admissibility,
whether based on Federal Rule of Evidence 602 (personal knowledge), Rule 901
(authentication), or Rule 802 (rule against hearsay), as well as to the reliability of her
measurements and whether she correctly recorded the data. (See Dkt. 149 at 20:21-21:11,
24:25-26:17, 26:18-23.) Plaintiff wants to be able to use the Documents at trial and
believes it needs Karau’s testimony to get them into evidence. (Id. at 20:21-21:11.) It is
worth revisiting Rules 602 and 901, because the scope of Karau’s anticipated testimony is
relevant to whether Plaintiff’s failure to timely disclose Karau is “harmless” for purposes
of Rule 37(c)(1).3
The Court begins with Federal Rule of Evidence 602, as the Third Amended Initial
Disclosures state that Karau’s anticipated testimony would be “limited to foundation” of
the Documents, “if necessary.” (Dkt. 142-1, Ex. 1 at 2.) Rule 602 provides that “[a]
witness may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge may consist of the witness’s own testimony.” Fed. R. Evid. 602. In
3
Plaintiff did not argue that its failure to disclose Karau, who performed the
analysis in May and June 2015, any time before September 2022 was timely or
substantially justified. The Court therefore focuses on harmlessness.
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terms of admissibility, it is common to speak of laying sufficient “foundation” to meet
the requirements of Rule 602. See, e.g., United States v. Ambursley, 61 F.3d 901, at *3
(4th Cir. 1995) (“We conclude that the foundation laid was adequate to meet Federal
Rule of Evidence 602’s dictate that a witness have ‘personal knowledge of the matter’
before testifying to it.”); United States v. Donald, 86 F. App’x 939, 942-43 (6th Cir.
2004) (“Donald’s objection for lack of foundation implicates Federal Rule of Evidence
602 which states in pertinent part: “A witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that the witness has personal knowledge of
the matter.”); Bertroche v. Mercy Physician Assocs., Inc., No. 18-CV-59-CJW-KEM,
2019 WL 4307127, at *17 (N.D. Iowa Sept. 11, 2019) (“Thus, if Dr. Perri is able to lay a
proper foundation at trial, her damages calculations will not be excluded under Rule 602
for lack of personal knowledge.”).
As for authentication, Federal Rule of Evidence 901 governs authentication or the
identification of evidence and provides that a witness may testify “that an item is what it
is claimed to be.” Fed. R. Evid. 901(b)(1). “To authenticate a document, the proponent
need only prove a rational basis for the claim that the document is what the proponent
asserts it to be.” United States v. Long, 857 F.2d 436, 442 (8th Cir. 1988) (citations
omitted). The authentication requirement of Fed. R. Evid. 901 is satisfied when a party
or their counsel concede the genuineness of a document. See Resolution Tr. Corp. v.
Eason, 17 F.3d 1126, 1131 (8th Cir. 1994) (“First, RTC’s authentication objection lacks
merit. Counsel for RTC conceded the genuineness of these two exhibits, satisfying the
authentication requirement of Fed. R. Evid. 901.”).
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The Court’s analysis begins with Rule 901, based on Plaintiff’s argument in its
opposition that “[t]he disclosure of witnesses for the purpose of authenticating documents
at trial is hardly surprising[,]” citing several cases where courts have permitted a witness
to testify at trial for authentication purposes even where the witnesses’ disclosure was
untimely. (Dkt. 144 at 10-11 (citing Smith v. Loudoun Cty. Pub. Sch., No. 1:15CV956
(JCC/TCB), 2016 WL 9943214, at *2 (E.D. Va. Jan. 21, 2016); Moore v. BASF Corp.,
No. CIV.A. 11-1001, 2012 WL 4344583, at *3 (E.D. La. Sept. 21, 2012); Quesenberry v.
Volvo Grp. N. Am., Inc., 267 F.R.D. 475, 480-81, 482 (W.D. Va. 2010).) The problem
with Plaintiff’s reliance on these cases is that Karau’s anticipated testimony is not limited
to authentication.4 Indeed, there does not appear to be any dispute as to the Documents’
authenticity (see Dkt. 149 at 4:16-20, 10:19-11:23), and as counsel noted during the
January 23 Hearing, there is no apparent reason why the recipients of the emails cannot
authenticate them (id. at 12:8-13:2).
The Court turns to Rule 602, as Plaintiff describes Karau’s anticipated testimony
as “foundational.” If the issue were truly foundational, the question would be whether
Karau has sufficient personal knowledge of the Documents (and her analyses) to testify
4
In contrast, Defendant stipulated to the admission of certain pepper tins to obviate
the need to call the second witness identified for the first time in the Third Amended
Initial Disclosures, where that witness’s testimony was limited to the authenticity of
certain unopened pepper tins he had purchased. (See Dkt. 140 at 4-5 (“The parties have
since resolved their dispute regarding Mr. Nelson, based upon a proffer by Watkins’s
counsel indicating that his testimony would simply authenticate certain unopened tins of
McCormick pepper that he purchased in 2015, and with McCormick stipulating to the
admission of those tins without the need for Mr. Nelson’s testimony.”); see also Dkt.
142-1, Ex. 1 at 3; Dkt. 149 at 11:11-17.)
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about them. See Fed. R. Evid. 602. But here, Plaintiff views Karau’s “foundational”
testimony as encompassing:
• the methodology Karau used for her testing (Dkt. 149 at 21:6 (“What did
you do?”));
• the accuracy of Karau’s measurements (Dkt. 144 at 14 (Plaintiff
describing Karau’s anticipated testimony as to “foundation and
authenticity” as including testimony “that she took the pictures and
accurately weighed the tins”);
• whether Karau correctly recorded her measurements (Dkt. 149 at 21:7-8)
(“Did you record correctly your measurements?”); and
• the fact that Karau “took [the measurements] in a way that is reliable and
is correct” (id. at 26:18-23).
These subjects go well beyond what is required to overcome a Rule 602 objection.
And given Plaintiff’s agreement that witnesses who did not perform the analyses cannot
testify about them (Dkt. 149 at 22:18-21), the Court does not find it credible that Karau’s
testimony would be limited to that necessary to overcome Defendant’s objections (see
Dkt. 144 at 1-2 (“Ms. Karau will testify only to the extent necessary for the three
documents identified in the Amended Disclosure to be admitted into evidence at trial.”)
(emphasis added); see also Dkt. 149 at 20:25-21:3) (“I am going to have her testify to
nothing more than what I need to do, as when at trial, based upon objections from
Counsel, what I need to do to get these admitted.”)). Plaintiff has not identified any other
witness who would testify as to the substance of the Documents or Karau’s analyses. In
sum, it is evident that Plaintiff intends to use Karau’s self-styled “foundational”
testimony to discuss the results of her May and June 2015 analyses and demonstrate their
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reliability and accuracy, because Plaintiff apparently believes it has no other way to get
the Documents or their substance before the jury.
Having identified the scope of Karau’s anticipated testimony, the Court turns to
whether Plaintiff’s failure to timely disclose her is harmless. Defendant argues that it
would be highly prejudicial to permit Karau to testify as to her methodology and results
of her May and June 2015 analyses, as well as their reliability and accuracy, all of which
constitute “substantive evidence allegedly relevant to the fill level of [Defendant’s] tins,
one of the fundamental issues in this litigation.” (Dkt. 140 at 10-11.) At the January 23
Hearing, Defendant identified the following prejudice: (1) the passage of time and the
fading of memories, (2) the need to re-depose witnesses to ask them questions about
Karau, (3) the fact that Michelle Fehr, who received the email summaries from Karau and
passed the information on to Mark Jacobs, Irwin Jacobs, and JR Rigley, has been retired
for six years and lives in Utah and that Irwin Jacobs, who was Plaintiff’s CEO at the time
and requested the analyses, is deceased, and (4) that there is insufficient time for
Defendant to rebut and critique Karau’s analyses in view of the May 2023 trial date.
(Dkt. 149 at 8:13-25, 9:5-12, 30:16-31:3.) In response, Plaintiff argues Defendant would
not be prejudiced if Karau testifies because Defendant has been in possession of the
Documents since the start of this case. (Dkt. 144 at 10-11.) Plaintiff also argues that any
harm can be cured by deposing Karau. (Id. at 13-14.)
The Court first addresses Plaintiff’s argument that Defendant cannot show
prejudice because it has had the Documents since this case began. The Court is not
persuaded. Defendant contends (and Plaintiff does not disagree) that Plaintiff has
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produced “thousands of pages of documents” in this case. (Dkt. 149 at 6:17-19.)
Plaintiff, not Defendant, bears the responsibility of formally disclosing witnesses,
“including those that [Defendant] may be aware of through other discovery. [Defendant]
is under no obligation to review [Plaintiff’s] documents to learn of potential witnesses.”
CNH Capital Am. LLC v. McCandless, No. C05-2087, 2007 WL 1830819, at *4 (N.D.
Iowa June 22, 2007) (citing Troknya v. Cleveland Chiropractic Clinic, 280 F.3d 1200,
1205 (8th Cir. 2002)). Numerous cases hold that a party is not required to deduce the
individuals an opposing party expects to call as witnesses at trial based on a voluminous
document production. See, e.g., United States ex rel. Higgins v. Bos. Sci. Corp., No. 11cv-2453 (JNE/TNL), 2020 WL 968218, at *10 (D. Minn. Feb. 28, 2020) (rejecting
plaintiff’s argument that a witness was made known through discovery because the
witness was referenced in “over 400” documents where it amounted to less than 2% of
the 30,000 documents produced); Taylor v. New York State Office for People with Dev.
Disabilities, 1:13-CV-740 (NAM/CFH), 2016 WL 2858856, at *6 (N.D.N.Y. May 13,
2016) (“Defendants were not required to cull the document production and assume that
plaintiff would call at trial any number of the individuals mentioned therein.”); World
Wide Ass’n of Spec. Programs v. Pure, Inc., No. 2:02-cv-00010 PGC, 2004 WL 5620058,
at *5 (D. Utah July 20, 2004) (explaining that “[t]here is a significant difference between
knowing that someone may have relevant testimony and that someone will be called to
testify as a witness” and that parties are “entitled to know” who “will be a part of the
trial”). Moreover, the fact that Defendant marked one of the Documents as a deposition
exhibit did not eliminate Plaintiff’s obligation to timely disclose Karau as a trial witness
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(particularly when that exhibit did not identify Karau by name). See also Ollier v.
Sweetwater Union High Sch. Dist., 768 F.3d 843, 863 (9th Cir. 2014) (“That another
witness has made a passing reference in a deposition to a person with knowledge or
responsibilities who could conceivably be a witness does not satisfy a party’s disclosure
obligations. An adverse party should not have to guess which undisclosed witnesses may
be called to testify.”).
The Court therefore turns to the relevant factors: (1) the importance of the
Documents; (2) Plaintiff’s explanation for its failure to comply with the required
disclosure; (3) the potential prejudice that would arise from allowing the material to be
used . . .; and (4) the availability of a continuance to cure such prejudice. See
Fesenmaier, 2021 WL 101193, at *22. Plaintiff has not made any argument as to the
importance of the Documents, nor has Plaintiff sufficiently explained why it did not
disclose Karau earlier in this case. This weighs against a finding of harmlessness.
As to prejudice, the Court agrees that Defendant will be prejudiced if Karau were
permitted to testify about the analyses she performed in May and June 2015, even if
Defendant deposed Karau. Over seven years have passed since Karau performed the
testing; Irwin Jacobs, the CEO who requested the testing, died about two years ago; and
Fehr, who seems to have been the conduit between Karau and Plaintiff’s executives with
respect to Karau’s analyses, retired six years ago and is living in Utah. Moreover,
Defendant states that it would need to re-depose other witnesses with respect to Karau’s
analyses, as well as explore other ways to rebut or critique her analysis. The Court finds
that this prejudice cannot be cured by a continuance. While Defendant likely could
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depose Karau before pretrial submissions are due in April 2023, Defendant would have
an abbreviated amount of time to conduct any additional depositions and determine what,
if any, expert analysis is necessary with regard to Karau’s analyses. The Court cannot
justify reopening discovery at this point to address Plaintiff’s unjustified failure to
disclose Karau when doing so would require Defendant to incur additional costs and
likely require a continuance of the trial. See Murphy by Murphy v. Harpstead, Civ. No.
16-2623 (DWF/BRT), 2019 WL 6650510, at *4 (D. Minn. Dec. 6, 2019) (“Adherence to
[scheduling] order deadlines is critical to achieving the primary goal of the judiciary: ‘to
serve the just, speedy, and inexpensive determination of every action.’”) (citations
omitted). Moreover, no continuance can cure the passage of time, fading memories, or
the fact that Irwin Jacobs, who requested the testing and received the results, has passed
away. See Ramirez ex. rel. Ramirez v. Bexar Cnty., Tex., Civ. No. SA-10-CV-0296 FB
(NN), 2011 WL 4565473, at *4 (W.D. Tex. Sept. 29, 2011) (noting that a “continuance
cannot cure prejudice resulting from the passage of time”); see also Hurd v. Univ. of Tx.
Health Science Ctr. at S.A., Civ. No. SA-09-CA-645-FB, 2012 WL 13076699, at *2
(W.D. Tex. July 16, 2012) (“given that this case was filed almost three years ago, and the
scheduling order has already been amended four times, the availability of a continuance
to cure this prejudice is dubious at best”).
In sum, Plaintiff has failed to meet its burden to show substantial justification or
harmlessness. See Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995) (“The
burden of establishing substantial justification and harmlessness is upon the party who is
claimed to have failed to make the required disclosure.”). The Court therefore prohibits
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Plaintiff from calling Karau as a witness at trial. See Fed. R. Civ. P. 37(c)(1) (“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 . . .”); see also Ollier, 768 F.3d at 863 (finding the district court did
not abuse its discretion in concluding that untimely disclosed witnesses were excluded
from testifying at trial given the costly and disruptive effects that would have resulted
from allowing the witnesses to testify); Niazi Licensing Corp. v. St. Jude Med. S.C., Inc.,
Case No. 17-cv-5096 (WMW/BRT), 2020 WL 1617879, at *2-4 (D. Minn. April 2, 2020)
(affirming a magistrate judge’s order, striking portions of plaintiff’s expert reports that
discussed facts that were not disclosed before the fact discovery deadline).
For all of these reasons, the Court grants the Motion, strikes paragraph (j) of
Plaintiff’s Third Amended Initial Disclosures, and precludes Plaintiff’s proposed witness,
Jacquelynn Karau, from testifying in this matter.
IV.
ORDER
Accordingly, based on the files, records, and proceedings herein, IT IS
ORDERED that:
1.
Defendant McCormick & Company, Incorporated’s Motion to Strike
Watkins Incorporated’s Third Amended Initial Disclosures and Exclude an Untimely
Disclosed Witnesses [sic] (Dkt. 139) is GRANTED;
2.
Plaintiff’s proposed witness, Jacquelynn Karau, is PRECLUDED from
testifying at trial; and
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3.
Paragraph (j) of Plaintiff’s Third Amended Initial Disclosures (Dkt. 142-1,
Ex. 1 at 2) is STRICKEN.
DATED: February 6, 2023
s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
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