Bailey v. City of Bellevue, Nebraska

Filing 254

ORDER - Defendant's Motion to Strike 243 is granted. Ordered by Magistrate Judge Michael D. Nelson. (SMN)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT BAILEY,
4:18CV3132

Plaintiff,

ORDER

vs.
CITY OF BELLEVUE, NEBRASKA, a
political subdivision of the State of Nebraska,
Defendant.

This matter is before the Court on the Motion to Strike (Filing No. 243) filed by
Defendant, the City of Bellevue, Nebraska. Defendant moves to strike six witnesses from
Plaintiff’s trial witness list because Plaintiff failed to disclose those witnesses prior to May 21,
2021, in accordance with Rule 26(a) of the Federal Rules of Civil Procedure. During the pretrial
conference, Plaintiff agreed to remove four of the six witnesses, and in Plaintiff’s response to
Defendant’s motion Plaintiff agreed to further remove Greg Young as a witness. (Filing No.
251). One disputed witness remains on Plaintiff’s witness list, Tom McCarty. McCarty is
Plaintiff’s former attorney that filed this lawsuit and was involved with Plaintiff’s requests for
accommodations from Defendant.

(Filing No. 1; Filing No. 251 at p. 2). For the following

reasons, the Court will grant Defendant’s request to strike McCarty as a witness because he was
not timely disclosed and such failure to disclose was not substantially justified or is harmless.
Federal Rule of Civil Procedure 26(a) requires parties to make certain initial and
mandatory disclosures, including providing other parties with “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). If a
party later learns a disclosure is incomplete or incorrect, the party “must supplement or correct
its disclosures . . . in a timely manner.” Fed. R. Civ. P. 26(e)(1). If a party fails to identify a
witness as required by Rule 26(a), “the party is not allowed to use that . . . witness to supply
evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ.
P. 37(c)(1). “Under Rule 37(c)(1), exclusion occurs automatically by operation of the rule; the
rule permits, but does not require, the imposition of an alternative sanction on a party’s motion.”

Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018); see also
Fed. R. Civ. P. 37(c) advisory committee’s note to 1993 amendment (“The revision provides a
self-executing sanction for failure to make a disclosure required by Rule 26(a).”). “[I]t is the
obligation of the party facing sanctions for belated disclosure [or nondisclosure] to show that its
failure to comply with the Rule was . . . deserving of some lesser sanction.” Vanderberg, 906
F.3d at 705 (finding “the district court did not abuse its discretion by not imposing a lesser
sanction [than exclusion] when [the sanctioned party] never requested one.”)(citation omitted).
The Court must first determine whether Plaintiff failed to identify McCarty as a witness
under Rule 26(a)(1). Plaintiff did not specifically identify McCarty in his initial Rule 26(a)(1)
disclosures served on January 15, 2019, (Filing No. 244-2), nor in his second Rule 26(a)(1)
disclosures served on Defendant on October 10, 2019, (Filing No. 244-3). This could be, in part,
because McCarty was representing Plaintiff in this litigation and was the attorney serving those
disclosures on Defendant. 1 The first time McCarty was specifically identified as a witness was
on May 21, 2021, in Plaintiff’s witness list prepared for the June 14, 2021, trial date.
Plaintiff maintains he adequately identified McCarty as a witness under Rule 26(a)(1)
because Plaintiff’s Rule 26(a)(1) disclosures generally identified “Persons referenced in the
documents identified [in these disclosures] regarding their knowledge of the matters set forth
therein,” and several of the listed documents contain McCarty’s name. (Filing No. 251 at p. 2;
Filing No. 244-3 at p. 7). For example, document 63 is a “Letter from Molly Miller to Plaintiff’s
Attorney Tom McCarty dated October 19, 2017.” (Filing No. 244-3 at p. 11). But, Molly Miller
was separately identified as a witness, whereas McCarty was not. McCarty was not separately
identified as a witness until Plaintiff disclosed his trial witness list on May 21, 2021.
The Court is persuaded that Plaintiff’s general reference to a large number of documents,
some of which contained McCarty’s name, was insufficient to meet the disclosure requirements
of Rule 26(a)(1). For example, in Sec. Nat’l Bank of Sioux City, Iowa v. Abbott Labs., No. C114017-MWB, 2013 WL 12155316, at *1 (N.D. Iowa Aug. 28, 2013), the plaintiff argued it timely
disclosed six trial witnesses because the plaintiff had referred to medical records in its Rule 26(a)
initial disclosures and in its interrogatory answers, and those witnesses’ names were contained
within the medical records. The court rejected the plaintiff’s argument, concluding:

1

McCarty was granted leave to withdraw as Plaintiff’s counsel in this case on March 11, 2020. (Filing No. 46).

The fact that the names of these six disputed witnesses might appear somewhere
in hundreds of pages of documents (or, as the case may be, on a videotape), does
not satisfy plaintiff’s disclosure obligations. Plaintiff had a full and fair
opportunity during the course of discovery to decide which medical providers are
important to its case (i.e., which ones it “may use to support its claims”) and to
disclose those providers by name. Plaintiff was not entitled to force defendant to
make guesses about which individuals, out of dozens of names, might have
enough relevant information to be called as witnesses for the plaintiff at trial.
Abbott Labs., 2013 WL 12155316, at *3; accord Transamerica Life Ins. Co. v. Lincoln Nat. Life
Ins. Co., 255 F.R.D. 645, 656 (N.D. Iowa 2009)(concluding that “references to a person in
various documents produced in discovery, even dozens of such documents, and use of some of
those documents by the opposing party in further depositions or discovery,” did not comply with
Rule 26(a) for purposes of identifying witnesses).
Here, Plaintiff’s initial disclosures did not specifically list the name and address of
McCarty as a witness, nor describe the subjects of the discoverable information he may have, nor
did Plaintiff provide any subsequent supplemental disclosures containing that information until
June 1, 2021, after Defendant filed this motion to strike. As noted by Defendant, nearly thirty
depositions have been taken in this case and thousands of pages of documents have been
provided in discovery; Defendant should not have to “make guesses about which individuals, out
of dozens of names, might have enough relevant information to be called as witnesses for the
plaintiff at trial.” Under the circumstances, the Court finds Plaintiff did not properly identify
McCarty as a witness as required by Rule 26(a)(1). See Abbott Labs., 2013 WL 12155316, at *3
(“Preparation of a witness list shortly before trial is not, even arguably, the correct time to put a
witness’s name in writing for the first time. Instead, it is the time to indicate which of the
individuals previously identified will actually testify at trial.”).
Once the court determines there has been a violation of Rule 26(a), the burden is on the
potentially sanctioned party to prove justification or harmlessness in order to avoid the selfexecuting sanction of exclusion. See Vanderberg, 906 F.3d at 705; Fed. R. Civ. P. 37(c)(1).
Here, Plaintiff primarily argues Defendant will not be harmed because McCarty is not an
unknown individual or surprise witness, and McCarty is available to be deposed next week.
Plaintiff also points to defense counsel’s acknowledgement during the pretrial conference that
Defendant “had considered deposing Tom McCarty but had decided against it.” (Filing No. 251
at p. 1).

It is true that McCarty would not necessarily be a “surprise” witness or that the areas of
his knowledge would be completely unknown to Defendant.

But if anything, that further

supports Defendant’s position that McCarty was not appropriately identified as a witness under
Rule 26(a)(1) and that the failure to identify McCarty is not harmless or justified. Had Plaintiff
timely disclosed McCarty as a witness and the subject matter upon which he would be called to
testify, Defendant would have been able to make a fully informed decision as to whether to
depose McCarty during discovery rather than one-week prior to trial. Additionally, it was even
more crucial for Plaintiff to specifically identify McCarty as a witness and the subject matter of
his potential testimony because McCarty represented Plaintiff throughout this litigation until
March 11, 2020. Without specific indication McCarty would be a potential fact witness in
Plaintiff’s case, Defense counsel would rightly be hesitant to notice a deposition of former
opposing counsel or assume former counsel would be testifying at Plaintiff’s trial.
During the pretrial conference, Plaintiff’s counsel appeared to indicate McCarty’s role as
a witness would be rather limited and that his deposition could easily be accomplished next week
prior to trial. But, in Plaintiff’s Third Supplemental Disclosures, provided to Defendant on June
1, 2021, Plaintiff identifies several topics from 2016 to 2019 that McCarty could testify about:
Mr. McCarty and Mr. Young have knowledge of the September 2016 complaints
filed on behalf of multiple members of the Bellevue Police Officers Union and
other employee(s) of the City of Bellevue regarding the alleged unethical,
harassing, and/or illegal actions and/or alleged misconduct by former BPD Chief,
Mark Elbert, involving said City of Bellevue employees. They also possess
information regarding meetings and communications with elected officials, other
management level employees of the City of Bellevue, and/or high ranking BPD
officers regarding the 2016 complaints, the investigation related thereto, Plaintiffs
2017 requests for reasonable accommodation made to the Defendant, defendant’s
responses thereto, including, but not limited to, Defendant’s directive that Bailey
move to the front desk sergeant position in November 2017, the alleged undue
burden to Defendant, and meetings, communications, and alleged interactive
process with Defendant’s attorneys, management employees and/or high ranking
BPD officials related to Plaintiffs 2017 reasonable accommodation requests,
2017-2019 complaints filed against BPD employees by Plaintiff regarding the
alleged continuing illegal conduct of the Defendant’s employees, and Bailey’s
separation from employment in June 2019. Mr. McCarty and Mr. Young can lay
foundation for certain documents exchanged in discovery and/or deposition
and/or trial exhibits.

(Filing No. 250-6 at p. 8).

In reviewing such disclosure, it is apparent that the scope of

McCarty’s potential testimony is much broader than was previously indicated. The Court and
the parties are preparing to proceed with trial on June 14, 2021. Although Plaintiff has indicated
McCarty could be deposed next week, the Court will not thrust the additional burden upon
Defendant to take a last-minute, substantial discovery deposition in the middle of trial
preparation to remedy to Plaintiff’s failure to timely and properly disclose McCarty as a witness.
See, e.g., Hallmark Indus., Inc. v. Hallmark Licensing, LLC, No. 4:18-CV-0236-DGK, 2019 WL
302514, at *5 (W.D. Mo. Jan. 23, 2019)(rejecting the plaintiff’s argument that failure to timely
disclose witness was harmless because the witness could be deposed). Under the circumstances,
the Court finds Plaintiff did not properly and timely disclose McCarty as a witness pursuant to
Rule 26(a)(1), and that such omission was not substantially justified or is harmless.
Accordingly,
IT IS ORDERED that Defendant’s Motion to Strike (Filing No. 243) is granted. Tom
McCarty and Greg Young are stricken as witnesses from Plaintiff’s trial witness list.
Dated this 3rd day of June, 2021.

BY THE COURT:
s/Michael D. Nelson
United States Magistrate Judge