Bayoh v. Afropunk Fest 2015 LLC et al

Filing 144

ORDER: The final pretrial telephone conference in this case was held on October 22, 2020. At the conference, counsel for the plaintiff stated that he intends to call witnesses to testify at trial who were not previously disclosed to defense counsel during discovery. Under Federal Rule of Civil Procedure 37(c)(1), a party that without substantial justification fails to disclose information required by Rule 26(a)... is not, unless such failure is harmless, permitted to use as evidence at a trial ... any witness...not so disclosed. Fed. R. Civ. P. 37(c)(1). In determining whether to exclude a witness under Rule 37(c)(1), a court must consider (1) the partys explanation for the failure to comply with the [disclosure requirement]; (2) the imp ortance of the testimony of the precluded witness[es]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance. Patterson v. Balsamico, 440 F.3d 104, 117 ( 2006) (citation omitted). It is hereby ORDERED that if the Court determines that the plaintiffs expert testimony is admissible, the parties shall submit briefs by Thursday, October 29 that address whether the plaintiffs witnesses should be excluded under Federal Rule of Civil Procedure 37(c)(1). IT IS FURTHER ORDERED that a telephone conference will be held on Friday, October 23 at 4:00 p.m. The dial-in credentials for the telephone conference are the following: Dial-in: 888-363-4749 Access code: 4324948 IT IS FURTHER ORDERED that the parties shall use a landline if one is available. (Signed by Judge Denise L. Cote on 10/22/2020) (gr)