Smith v. Montgomery County Sheriff's Office et al

Filing 95

DECISION AND ORDER. Accordingly, each party's amended witness list is STRICKEN except as to Bill Couch, Jim Burke, Don Williams, and Christopher Ludwick who have been identified buy Plaintiff and at least one Defendant. To the extent any party seeks to add any other name to his witness list who was not identified by the due date of November 1, 2011, that party must seek leave of court. Signed by Magistrate Judge Michael R Merz on 5/21/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BILLY M. SMITH,

:

Plaintiff,

Case No. 3:10-cv-448
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vs:
MONTGOMERY COUNTY
SHERIFF=S OFFICE, et al.,
Defendants.

DECISION AND ORDER

A Scheduling Order was entered in this case on July 28, 2011, which, inter alia, set the deadline for each
party to file its lay witness list not later than November 1, 2011 (Doc. No. 53, ¶ 4.) A discovery cut-off was set
for May 1, 2012. Id. at ¶ 7.
Defendants filed lay witness lists on the date due (Doc. Nos. 64, 65). Defendant Kowalski identified
nine witnesses and the other Defendants identified six witness plus all Defendants and witnesses named by
others and all of Plaintiff’s medical providers. On November 22, 2011, Plaintiff filed his “Lay Witness List As
of October 26, 2011” which listed twenty-eight names (Doc. No. 69).
On March 15, 2012, Defendants other than Kowalski filed an Amended Witness List (Doc. No. 90),
adding the names of Bill Couch “and possibly other members of the Warren County Drug Task Force” as well as
Prosecutor Greg Spears. Id. at PageID 806. On May 1, 2012, Defendant Kowalski filed an Amended Lay
Witness Disclosure which added the names of Jeff Perkins, Joseph Niehaus, Craig Bailey, Mike Kemper, Dan
Schweitzer, Bill Couch, Zackarij Wright, Christopher Ludwick, Kristopher Long, and FBI Special Agent
Matthew Hartmann (Doc. No. 93, Page ID 835-836.) Then on May 18, 2012, Plaintiff filed his “Lay Witness
List As Of April 28, 2012” (Doc. No. 94) which lists sixty-two names. It omits two names listed in the
Plaintiff’s October 26th list (Schweitzer and Clifford), but adds thirty-six new names. Some of these (Bill
Couch, Jim Burke, Don Williams, and Christopher Ludwick) duplicate names identified by the Defendants and
Plaintiff has expressly listed all four individual Defendants as witnesses; otherwise, the added nameson
Plaintiff’s list are new to the litigation.
The General Order on Pretrial and Trial Procedures for the Dayton location of court provides
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Lists of witnesses are to be final lists of those intended to be called
at trial, not preliminary lists of those who may have relevant
information. The purpose of this filing of witness lists is to permit
timely completion of discovery. Supplementation of the lists after
filing will be only upon a showing of good cause, i.e., that the
identity of the witness and/or the need for the witness’s testimony
could not have been previously determined upon the exercise of due
diligence by counsel.
(General Order DAY 12-01, available under General Orders at www.ohsd.uscourts.gov.)
Although this General Order was revised as of February 2, 2012, this provision on witness lists has
been part of the Dayton General Order for many years.
The Court notes at least the following problems with the amended witness lists:
1. No party sought leave of Court to amend nor included a showing of good cause in the
amended list.
2. Plaintiff’s and Defendant Kowalski’s lists were filed at or after the discovery cut-off date,
precluding other parties from taking discovery from the added witnesses.
3. Plaintiff’s List includes as to many witnesses Plaintiff’s summarized speculation about
what the witnesses will testify to. Trial is not an occasion to call a witness to see what he
will have to say. Rather, it is for presentation of evidence which has been prepared
beforehand by the party presenting the witness.
Accordingly, each party’s amended witness list is STRICKEN except as to Bill Couch, Jim
Burke, Don Williams, and Christopher Ludwick who have been identified buy Plaintiff and at least one
Defendant. To the extent any party seeks to add any other name to his witness list who was not identified by the
due date of November 1, 2011, that party must seek leave of court.
May 21, 2012.

s/ Michael R. Merz
United States Magistrate Judge

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