U. S. Technology Corporation v. Ramsay et al

Filing 102

ORDER denying 84 Motion to exclude testimony and to quash or modify subpoenas. Signed by Honorable David C. Bramlette, III on 6/23/2011 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
U.S. TECHNOLOGY CORPORATION
VS.

PLAINTIFF/
COUNTER-DEFENDANT
CIVIL ACTION NO. 5:08-cv-218(DCB)(JMR)

PAT RAMSAY
and
DELTA LOGGING & COMPANY, INC.

DEFENDANT
DEFENDANT/
COUNTER-CLAIMANT
ORDER

This cause is before the Court on the defendants Pat Ramsay
and Delta Logging & Company, Inc.’s motion to exclude testimony of
Buford Atkinson, and to quash or modify certain subpoenas to be
issued by the plaintiff (docket entry 84).

Having carefully

considered the motion and response, the parties’ briefs and the
applicable law, the Court finds as follows:
The Federal Rules of Civil Procedure require a party to
disclose the names of each individual likely to have discoverable
information that the disclosing party may use to support its claims
or defenses.

See Fed.R.Civ.P. 26(a)(1)(A)(i).

A party that fails

to identify a witness as required by Rule 26(a) is not allowed to
use that witness at trial “unless the failure was substantially
justified or is harmless.”

Fed.R.Civ.P. 37(c)(1).

U.S. Technology states that on May 5, 2010, it served a
subpoena on Shelton Smith & Company, PA, for the accounting records
of

Hydromex,

Inc.,

which

Shelton

Smith

had

prepared

at

the

direction of the U.S. Bankruptcy Trustee in Hydromex’s bankruptcy
proceedings.

On June 15, 2010, U.S. Technology produced selected

documents received from Shelton Smith, including general ledgers
and financial statements created by The Byrne CPA Firm, PA, for
Hydromex.

Also included were documents identifying T. Buford

Atkinson as the partner in charge of the financial statement
compilations for Hydromex.
U.S. Technology intends to call Atkinson at trial solely to
authenticate the documents.

U.S. Technology argues that its

failure to disclose Atkinson as records custodian is harmless error
and that no prejudice to the defendants will result if Atkinson is
permitted to testify as a witness.

In light of the above, the

Court finds that U.S. Technology’s failure to disclose Atkinson is
harmless.

The defendants claim that allowing Atkinson to testify

at trial would be unduly prejudicial to them; however, they fail to
demonstrate any undue prejudice, and the Court finds none.

The

motion to exclude testimony shall therefore be denied.
The defendants also object to the plaintiff issuing subpoenas
to Buford Atkinson, Steve Bailey, Roy Wayne Burrell, Frank Cook,
Timothy Holloway, David Lee, Paula Pyles, Windell Singleton and
Steven Street on the basis that they will be required to travel
more

than

100

miles

in

order

to

appear

in

court.

Rule

45(c)(3)(A)(ii) provides that a court issuing a subpoena “must
quash or modify a subpoena that ... requires a person who is

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neither a party nor a party’s officer to travel more than 100 miles
from where that person resides, is employed, or regularly transacts
business in person - except that, subject to Rule 45(c)(3)(B)(iii),
the person may be commanded to attend trial by traveling from any
such place within the state where the trial is held.” (emphasis
added).

Rule 45(c)(3)(B)(iii), in turn, provides that the issuing

court may, on motion, quash or modify the subpoena if it requires
... a person who is neither a party nor a party’s officer to incur
substantial expense to travel more than 100 miles to attend trial.”
(emphasis added).
The plaintiff’s witness list discloses that all of the above
named witnesses live and/or work in the State of Mississippi.

The

Court is therefore not required to quash or modify the subpoenas.
As for Rule 45(c)(3)(B)(iii), the defendants “request that the
Court modify the subpoenas to ensure that the witnesses are
adequately compensated for the great inconvenience and expense they
will incur traveling to attend the trial.” However, there has been
no showing by the defendants nor by any of the witnesses concerning
any “substantial expense” that might be incurred.
quash

or

prejudice.

modify

subpoenas

shall

therefore

be

The motion to
denied

without

Accordingly,

IT IS HEREBY ORDERED that the defendants Pat Ramsay and Delta
Logging & Company, Inc.’s motion (docket entry 84) is DENIED as to
the motion to exclude testimony of Buford Atkinson; and DENIED

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WITHOUT PREJUDICE as to the motion to quash or modify certain
subpoenas to be issued by the plaintiff.
SO ORDERED, this the 23rd day of June, 2011.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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