Kristy Rella v. Westchester BMW, Inc. et al
Filing
199
DECISION AND ORDER denying 197 Letter Motion for Discovery. For the foregoing reasons, Plaintiff's motion filed at ECF No. 197 is DENIED. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 197. SO ORDERED. (Signed by Magistrate Judge Andrew E. Krause on 5/27/2022) (tg)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KRISTY RELLA,
DECISION AND ORDER
Plaintiff,
-against-
16-cv-916 (AEK)
WESTCHESTER BMW, INC. et al.,
Defendants.
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THE HONORABLE ANDREW E. KRAUSE, U.S.M.J.
Plaintiff Kristy Rella brings this action against Defendants Westchester BMW, Inc.;
BMW of North America, LLC; and Bayerische Motoren Werke Aktiengesellschaft (collectively,
“Defendants”) based upon an incident in which Plaintiff’s vehicle allegedly “burst into flames
and exploded.” See ECF No. 197 at 1. The trial of this matter is scheduled to begin on July 5,
2022. Before the Court is Plaintiff’s motion to permit Ms. Rella’s parents, Gil and Rosemary
Rella (the “Rellas”), to testify at trial. Id. For the following reasons, Plaintiff’s motion is
DENIED, and the Rellas will not be permitted to testify.
DISCUSSION
I.
Applicable Legal Standard
After a civil case is initiated and prior to discovery, parties must provide the names and
known addresses for “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). “If a party fails to provide information or identify a witness as
required by Rule 26(a) . . . the 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.” Fed. R. Civ. P. 37(c)(1). Courts consider four factors in evaluating whether to
preclude testimony under Rule 37 for failure to disclose under Rule 26(a):
(1) the party’s explanation for the failure to comply with the discovery [obligation];
(2) the importance of the testimony of the precluded witness; (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.
Chamberlain v. City of White Plains, 960 F.3d 100, 117 (2d Cir. 2020).
II.
Analysis
During a May 11, 2022 conference with the Court, Plaintiff’s counsel stated that Plaintiff
intended to call the Rellas as trial witnesses. Plaintiff did not list the Rellas in her initial
disclosures made pursuant to Rule 26(a) of the Federal Rules of Civil Procedure, nor did she
supplement her initial disclosures pursuant to Rule 26(e) of the Federal Rules of Civil
Procedure. 1 Indeed, Plaintiff did not disclose the Rellas as potential trial witnesses at any point
prior to the May 11, 2022 conference, see ECF No. 198 at 1-2, even though this case has been
pending for more than six years, and has been scheduled for trial multiple times. Accordingly, it
is necessary to evaluate the four factors articulated by the Second Circuit to determine whether
Plaintiff’s failure to timely disclose should preclude Plaintiff from offering the Rellas as
witnesses at trial.
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Plaintiff suggests that her Rule 26(a) disclosures should be read to include the Rellas
because Plaintiff “reserved the right to amend[,] modify[,] and/or supplement these initial
disclosures.” ECF No. 197 at 1 (alteration omitted). But Plaintiff did not actually do any of
these things—an announcement at a pretrial conference that a party plans to call certain
witnesses at trial is not an appropriate way to amend or supplement Rule 26(a) disclosures. In
addition, the fact that Defendants’ Rule 26(a) disclosures purport to encompass “anyone referred
to or mentioned in future deposition testimony,” see id. (alteration omitted), is not sufficient for
Plaintiff to have fulfilled her obligations to notify Defendants of the individuals Plaintiff
believed would be likely to have discoverable information. Though it is not the subject of this
motion, this vague, blanket statement by Defendants also would not have been a sufficient
disclosure if Defendants had been the ones to suggest calling the Rellas as witnesses at trial.
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Because Plaintiff does not provide any reason for the extremely delayed disclosure, the
first factor weighs against allowing the Rellas’ testimony. See Simon v. City of New York, No.
14-cv-8391 (JMF), 2017 WL 57860, at *6 (S.D.N.Y. Jan. 5, 2017) (first factor “cuts heavily
against [the proponent of the late-disclosed testimony], as he does not even attempt to proffer a
legitimate explanation for his eleventh hour disclosure”). Instead of explaining the delay,
Plaintiff attempts to deflect by asserting that the Rellas “have been known to Defendants since at
least March 13, 2018”—the date of Plaintiff’s deposition. ECF No. 197 at 2. Plaintiff argues
that Defendants were on notice of the Rellas’ potential trial testimony at that time because during
her deposition, she made a handful of references to her parents. See id. The Court disagrees.
The fact that certain potential witnesses are mentioned in a deposition does not absolve a party of
its obligation to make the disclosures that are required by Rule 26(a)(1)(A)(i), or to supplement
those disclosures as required by Rule 26(e). If mere mention of a name in a deposition were
sufficient to constitute notice about a potential trial witness to an opposing party, the Rule
26(a)(1)(A)(i) disclosure requirements would be rendered virtually meaningless, and parties
would constantly be left guessing about which witnesses they should depose in advance of trial.
If anything, Plaintiff’s explanation cuts against the requested testimony—by Plaintiff’s logic, she
and her counsel have been aware of these supposedly relevant witnesses since at least March
2018, but for four years failed to take the appropriate steps to identify the Rellas as potential trial
witnesses. Plaintiff has not even attempted to justify this four-year delay. Accordingly, the first
factor “swings heavily in favor of excluding” the Rellas’ testimony. See Simon, 2017 WL
57860, at *6.
The second factor likewise counsels against allowing the Rellas’ testimony. Plaintiff
claims her parents’ testimony “is important in order to juxtapose [Plaintiff’s] condition before
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and after her BMW burst into flames and exploded.” ECF No. 197 at 1. But even assuming the
relevance of this “juxtaposition,” Plaintiff does not elaborate as to how the Rellas’ testimony
would meaningfully supplement her own testimony, given that Plaintiff is expected to testify and
is a percipient witness to her condition before and after the incident. In addition, Plaintiff intends
to present expert testimony regarding her medical and psychological condition in the years after
the incident, which also would inevitably overlap to a significant extent with testimony that
potentially could be offered by the Rellas. Under the Federal Rules of Evidence, a court “may
exclude relevant evidence if its probative value is substantially outweighed by a danger of . . .
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Because the Rellas seem poised
to present “needlessly [ ] cumulative evidence”—and Plaintiff has not offered any real
explanation of the importance of this testimony—the second factor also weighs against allowing
these witnesses to testify.
On the other hand, Defendants would be prejudiced if the Rellas were permitted to
testify. Defendants have not had an opportunity to seek discovery from the Rellas, let alone to
follow up on any additional avenues for discovery that might have been generated from
depositions of the Rellas. Courts have recognized that late disclosure of a witness in close
proximity to trial “is plainly prejudicial” to the party against who the testimony would be
offered. EMA Fin., LLC v. Joey N.Y., Inc., No. 17-cv-9706 (VSB), 2021 WL 2822565, at *2
(S.D.N.Y. June 9, 2021) (precluding testimony of witness identified “less than a month before
trial” in case where trial had already been delayed substantially). Thus, the third factor weighs
against the additional proposed testimony.
Fourth, and finally, a continuance is not warranted. The incident that gave rise to this
litigation occurred over nine years ago, and the action has been pending since 2016. Discovery
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has now been closed for over three years. The Court was fully prepared to try this case in
January 2022, but allowed a lengthy six-month adjournment at the parties’ request. Had this
issue been raised months earlier, there may have been an opportunity to reopen discovery
without disrupting the trial schedule. At this point, however, with pretrial submissions due
imminently, the Court will not force Defendants to take away from trial preparation time to
complete depositions of witnesses who should have been identified properly years ago, and
certainly will not further delay this trial. The fourth factor favors exclusion.
**********
While Plaintiff is correct to point out that the preclusion of evidence is generally
“disfavored,” see ECF No. 197 at 2 (citing Kunstler v. City of New York, 242 F.R.D. 261, 265
(S.D.N.Y. 2007)), all of the factors considered by the Court here support the exclusion of the
Rellas as trial witnesses. There is no dispute that Plaintiff failed to disclose the Rellas as
potential witnesses in their Rule 26(a)(1) disclosures, and did not formally supplement those
disclosures to add the Rellas as potential witnesses at any point prior to the May 11, 2022
conference. These failures were not substantially justified or harmless, and accordingly
preclusion of the Rellas as witnesses is an appropriate sanction.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion filed at ECF No. 197 is DENIED. The
Clerk of Court is respectfully directed to terminate the motion at ECF No. 197.
Dated: May 27, 2022
White Plains, New York
SO ORDERED.
________________________
ANDREW E. KRAUSE
United States Magistrate Judge
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