Adams v. Roberts
ORDER granting 66 Motion to Strike. Roberts is precluded from calling the following four untimely disclosed witnesses at trial: (1) Undersheriff Ben Woods; (2) Colt Lackey; (3) Dennis Bolitho; and (4) Valerie Bolitho. Signed by Judge Dana L. Christensen on 4/28/2021. (ASG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BRENDAN E. ADAMS, an individual,
Plaintiff and Counter Defendant,
HOWARD C. ROBERTS,
Defendant and Counter Claimant.
Before the Court is Plaintiff Brendan E. Adams’ Motion to Strike
Defendant’s Witnesses. (Doc. 66.) Adams asks the Court to prevent four
witnesses from providing testimony at next week’s trial based on Defendant
Howard C. Roberts’ failure to timely disclose them. (Docs. 66, 67.) The Court
will grant the motion.
Without awaiting a request, a party must provide to the other party “the
name . . . 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[.]” Fed. R. Civ. P. 26(a)(1)(A)(i). A party must “timely”
supplement this initial disclosure “if the party learns that in some material respect
the response is incomplete . . . and if the additional . . . information has not
otherwise been made known to the other parties during the discovery process[.]”
Id. at 26(e)(1)(A). And, “unless the court orders otherwise, these disclosures must
be made at least 30 days before trial.” Id. at 26(a)(3)(B).
As both parties are well aware at this point, Federal Rule of Civil Procedure
37(c)(1) “put[s] teeth into the mandatory disclosure requirements of Rule 26(a) and
(e).” Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 861 (9th Cir.
2014) (internal quotation marks and ellipses omitted). That is, “[a] party that does
not timely identify a witness under Rule 26 may not use that witness to supply
evidence at trial ‘unless the failure was substantially justified or harmless.’” Id.
(quoting Fed. R. Civ. P. 37(c)(1)). Indeed, pursuant to Rule 37(c)(1), Roberts
successfully moved for the exclusion of Adams’ medical witnesses based on
Adams’ failure to submit expert reports as required by Rule 26. (See generally
In this instance, however, it is Roberts who failed to comply with his Rule
26 obligations. With ten days left before a trial that has been continued three
times, Roberts filed a notice of additional witnesses that he may call. (Doc. 65.)
Specifically, Roberts indicates that he may call four heretofore undisclosed
witnesses: (1) Undersheriff Ben Woods; (2) Colt Lackey; (3) Dennis Bolitho; and
(4) Valerie Bolitho. (Doc. 65-2.) Absent from Roberts’ notice is any explanation
as to how his last-minute disclosure is substantially justified or harmless. See Fed.
R. Civ. P. 37(c)(1). In view of Roberts’ previous ability to navigate the interplay
between Rule 26 and Rule 37 to his benefit (see Docs. 18, 19, 21), his failure to
acknowledge either factor in his notice of supplemental witnesses is particularly
The Court understands, of course, the reason behind Roberts’ late disclosure.
In denying Roberts’ recent motion for sanctions, the Court also addressed several
evidentiary issues that arose at the hearing on the motion. (Doc. 57.) In particular,
the Court indicated that it would allow Roberts “marginal latitude” to elicit
evidence about two prior incidents that bear peculiar similarities to the altercation
at the center of this case. (Id. at 10–12.) However, the Court warned that any
witnesses called for this purpose must have personal knowledge of the incident or
incidents to which they testified. (Id. at 12.) To that end, the Court noted that the
other parties to the prior incidents—the Lackeys and the Bolithos—were absent
from Roberts’ “will” or “may” call witness lists. (Id. at 12 n.4; Doc. 27 at 17–18.)
It appears, then, that Roberts’ undisputedly last-minute disclosure is
“substantially justified” by his desire to proffer admissible evidence about the
Lackey and Bolitho incidents. See Fed. R. Civ. P. 37(c)(1). The Court disagrees.
Again, the Court strictly cabined any inquiry into the Lackey and Bolitho incidents
to “establishing the points of ‘peculiar’ similarity between these two incidents and
the event at issue [in this case].” (Doc. 57 at 12.) Specifically, the only relevance
the Lackey and Bolitho incidents bear to the instant case is to demonstrate a
“‘peculiar’ pattern wherein Adams finds himself resolving disputes over property
lines and land access through aggressive confrontations with neighbors.” (Id. at
11.) Inquiry about the historical background of Adams’ relationships with the
Lackeys and Bolithos, the Court said, would be denied. (Id. at 12.)
At the sanctions hearing, the Court heard Adams testify about both the
Lackey and Bolitho incidents. And, the Court is convinced that Roberts can elicit
sufficient evidence about both events—within the confines of the marginal latitude
granted—from Adams himself. That is, just as he did at the hearing, Adams can
testify to the fact of the altercations, the subject of the altercations (property lines
and/or land access), and the nature of the altercations. Those are the points of
peculiar similarity between those incidents and the altercation at issue in this case;
anything further simply detours into a largely irrelevant, unfairly prejudicial, and
confusing sideshow. That the Court will allow significantly limited testimony
about the Lackey and Bolitho incidents—evidence which can be elicited from the
plaintiff—fails to amount to a “substantial justification” for Roberts’ eleventh-hour
disclosure. See Fed. R. Civ. P. 37(c)(1).
Additionally, Roberts cannot genuinely argue that his late disclosure is
harmless. If the Court allows these four new witnesses to testify at trial, Adams
will have to depose them— “or at least consider which witnesses were worth
deposing—and to prepare to question them at trial.” See Ollier, 768 F.3d at 863.
Reopening discovery in this already protracted case would burden Adams and
disrupt the Court’s and the parties’ schedules. Id. “The last thing a party or its
counsel want in a hotly contested lawsuit is to make last-minute preparations and
decisions on the run.” Id.
In sum, because Roberts’ failure to comply with the disclosure requirements
of Rule 26(a) and (e) is neither substantially justified nor harmless, the Court will
grant Adams’ motion to exclude the four new witnesses Roberts names on his
“may” call list. (See Doc. 65-2.) Obviously, should Adams testify untruthfully to
the Lackey and Bolitho incidents, Roberts’ disclosure obligations do not extend to
witnesses used “solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). Again,
however, the Court cautions Roberts that inquiry into either incident—even for
impeachment—is strictly limited to those points of peculiar similarity to the
altercation at issue in this case.
Accordingly, IT IS ORDERED that the motion (Doc. 66) is GRANTED.
Roberts is precluded from calling the following four untimely disclosed witnesses
at trial: (1) Undersheriff Ben Woods; (2) Colt Lackey; (3) Dennis Bolitho; and (4)
Valerie Bolitho. (See Doc. 65-2.)
DATED this 28th day of April, 2021.
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