Lopez et al v. The City of New York et al

Filing 71

ORDER granting 66 Motion for Reconsideration but Adhering to Original Decision. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 6/15/2012. (Reyes, Ramon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HECTOR LOPEZ, BRENDA
CONCEPCION, and CONSUELO PEREZ,
Plaintiffs,
SUMMARY ORDER
-against11-CV-2607 (CBA) (RER)
THE CITY OF NEW YORK, et al.,
Defendants.
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RAMON E. REYES, JR., U.S.M.J.:
Before the Court is defendants’ motion to reconsider the Court’s May 23, 2012 Order
precluding defendants “from offering at trial any witnesses not specifically disclosed to date.”
(See Dkt. Entry dated 5/23/12.) Because defendants initially did not have the opportunity to
submit written opposition to the Plaintiffs’ motion, I will reconsider the May 23rd Order. Upon
reconsideration, however, the May 23rd Order remains in effect for two reasons.
First, defendants are incorrect that the plain language of Rule 37 bars the relief afforded
in the Court’s May 23rd Order. (Id. at 2.) Indeed, just the opposite is true. The Court has the
ultimate discretion on whether to preclude witnesses from testifying at trial pursuant to Rule
37(c)(1). That discretion is not, as defendants argue, dependent on an aggrieved party first (1)
identifying the discovery that was never supplemented and (2) moving to compel before seeking
preclusion, and (3) the court first issuing an order directing the noncomplying party to disclose
the requested material. (Dkt. No. 66 at 2.)
Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), that 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.” Of course, Rule 26(a)(1)(A) obligates a party, “without awaiting a
discovery request,” to disclose the identities of any witnesses “likely to have discoverable
information—along with the subjects of that information—that the disclosing party may use to
support its claims or defenses. . .” (Emphasis added). Rule 26(e)(1) obligates a party to
supplement its Rule 26(a) disclosures “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.” The combined purpose of these Rules is to avoid surprise or
trial by ambush. E.g., Loral Fairchild Corp. v. Victor Co. of Japan, Ltd., 911 F. Supp. 76, 79-80
(E.D.N.Y. 1996). Moreover, the “sanction” of preclusion in Rule 37 for failing to disclose
witnesses as required by Rules 26(a) and 26(e)(1) is “self-executing” and “automatic”:
The revision provides a self-executing sanction for failure to make a disclosure
required by Rule 26(a), without need for a motion [to compel]. Paragraph (1)
prevents a party from using as evidence any witnesses or information that, without
substantial justification, has not been disclosed as required by Rules 26(a) and
26(e)(1). This automatic sanction provides a strong inducement for disclosure of
material that the disclosing party would expect to use as evidence, whether at trial,
at a hearing, or on a motion, such as one under Rule 56.
Fed.R.Civ.P. 37 Advisory Committee Notes to 1993 Amendments (emphasis added). Nothing in
Rules 26(a), 26(e)(1), or 37(c)(1), requires the three-step approach advocated by defendants –
identification of discovery not supplemented, a motion to compel, and then a court order
directing production – before an order of preclusion can be issued at the Court’s discretion.
Second, and perhaps most importantly, the May 23rd Order does not prejudice defendants.
Critically, the defendants have stated repeatedly that they will not “call any witnesses other than
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those identified in their disclosures.” (Dkt. No. 66 at n.1; see also Dkt. No. 65 at 17:15-19 (“We
have no intention of calling anyone that wasn’t identified in our Rule 26 disclosures at trial.
We’re well aware of our obligations under Rule 26 and the consequences under Rule 37.”) If
that is true, than the May 23rd Order does not harm them in any way whatsoever.
Further, if, as defendants argue in their reply, they have disclosed all witnesses with
knowledge about the facts and circumstances surrounding the plaintiffs’ arrests and “it is
abundantly clear that defendants have nothing to hide” (Dkt. No. 69 at 1), there is very little risk
of Judge Amon issuing a missing witness charge to the jury. In any event, nothing in the May
23rd Order would preclude defendants from petitioning Judge Amon to permit additional
witnesses to testify should they be discovered and disclosed between now and the trial. If there is
“substantial justification” for the failure to disclose to date, or the failure is “harmless,” Judge
Amon would surely permit those witnesses to testify. Fed. R. Civ. P. 37(c)(1). What Rule 37
clearly prohibits, however, is for defendants to knowingly fail to disclose percipient witnesses in
violation of their obligations under Rule 26(a) and (e)(1), and then seek to have those witnesses
testify at trial.
Dated: Brooklyn, New York
June 15, 2012

Ramon E. Reyes, Jr.
Ramon E. Reyes, Jr.
United States Magistrate Judge

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