Petersen v. Bitters et al

Filing 227

MEMORANDUM AND ORDER - that Defendant's objection is sustained, and Matthew M. Zarghouni is stricken as a trial witness for Plaintiff. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ESTATE OF JOYCE ROSAMOND
PETERSEN, deceased;
8:16CV183
Plaintiff,
MEMORANDUM AND ORDER

vs.
WILLIAM E. BITTERS, ROBERT W.
BOLAND JR., and JOHN L. HENRY,
Defendants.

A pretrial conference was held yesterday for the above-captioned action. As
to the witness list, counsel for both parties were asked if all witnesses listed were
timely disclosed as potential trial witnesses as required under the federal rules.
See Fed.R.Civ.P. 26 (a)(3). Plaintiff’s counsel affirmed that Defendant’s witnesses
(Bitters and Bitters’ retained expert) were previously disclosed. (Filing No. 224,
audio file, 53:00-53:15).
However, Bitters’ counsel stated he was not previously advised that Plaintiff
intended to call defense counsel, Matthew M. Zarghouni, as a trial witness. As
such, Defendant objected to listing Matthew M. Zarghouni as a witness for Plaintiff
in the pretrial conference order. To discern whether the objection was valid, the
court requested a copy of Plaintiff’s pre-trial witness disclosure. Plaintiff’s counsel
stated the disclosure would be sent to the court for review by email, and the court
anticipated receiving that email during the pretrial conference itself. (Filing No. 224,
audio file, 44:00-46:05; 48:55-53:00). The email did not arrive by the time the
pretrial conference ended at 11:30 a.m. A reminder email requesting an immediate
response was sent to all counsel by the undersigned magistrate judge at 3:20 p.m.
At 4:30 p.m., the court entered an order which stated that “[o]n or before 11:00

a.m. on June 27, 2018, counsel for Plaintiff shall file a copy of the trial witness
disclosures Plaintiff served on Defendant Bitters as required under Fed. R. Civ. P.
26(a)(3)(A)(i-ii) and (a)(3)(B).” (Filing No. 225).
Plaintiff’s 205-page response was filed at 10:31 a.m. today. (Filing No. 226).
The trial witness list Plaintiff served on March 6, 2018 did not list defense counsel,
Matthew M. Zarghouni, as a trial witness. (Filing No. 226 at CM/ECF pp. 13-16).
The proposed pretrial order sent to the court on June 7, 2018, for the pretrial
conference then scheduled for June 12, 2018 did not list Matthew M. Zarghouni as
a trial witness. (Filing No. 226 at CM/ECF pp. 17-53). Based on the filings of record,
Matthew M. Zarghouni was not identified as a Plaintiff trial witness until June 22,
2018, when the court received Plaintiff’s proposed pretrial conference order for the
pretrial conference re-scheduled to June 26, 2018.1 Trial is scheduled to
commence on July 9, 2018.
Plaintiff argues that by requesting a listing of trial witnesses in the parties’
proposed pretrial conference order, the court modified the witness disclosure
deadlines in Fed. R. Civ. P. 26(a)(3)(B). This argument lacks merit. The pretrial
conference is governed by Rule 16; mandatory pretrial disclosures are governed
by Rule 26. Nothing in Rule 16 of the Federal Rules, this court’s local rules
governing final pretrial conferences, (see NECivR 16.2), or my orders
implementing those rules, negates the duty and timing for trial witness disclosures
under Rule 26 of the Federal Rules of Civil Procedure.

1

While other trial witnesses for Plaintiff were also not timely disclosed,
Defendant did not object to the listing of those witnesses during the pretrial
conference. As such, the court will address the untimely disclosure of only Matthew
M. Zarghouni as a trial witness.
2

Matthew M. Zarghouni was not timely identified as a trial witness for Plaintiff
as required under Fed. R. Civ. P. 26(a)(3)(A)(i-ii) and (a)(3)(B).

Accordingly,
IT IS ORDERED that Defendant’s objection is sustained, and Matthew M.
Zarghouni is stricken as a trial witness for Plaintiff.

June 27, 2018
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

3