Hornady Manufacturing v. Double Tap Ammunition

Filing 275

MEMORANDUM DECISION AND ORDER granting in part and denying in part 207 Defendant's Fifth Motion in Limine. Plaintiff shall make Ms.McHale available to Defendant for deposition in Salt Lake City. Signed by Judge Ted Stewart on 4/18/13. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

HORNADY MANUFACTURING
COMPANY, INC., a Nebraska Corporation,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
FIFTH MOTION IN LIMINE

vs.

DOUBLETAP, INC., a Utah Corporation,

Case No. 2:11-CV-18 TS

Defendant.

This matter is before the Court on Defendant’s Fifth Motion in Limine.1 For the reasons
discussed more fully below, the Court will grant in part and deny in part Defendant’s Motion.
I. INTRODUCTION
Defendant moves in limine to prevent Plaintiff from calling at trial, or otherwise relying
on the testimony of, any witnesses omitted from Plaintiff’s Federal Rule of Civil Procedure
26(a)(1) disclosures. Defendant’s Motion deals in particular with Ms. Kathy McHale and Mr.

1

Docket No. 207.
1

Jason Hornady—two potential witnesses for the Plaintiff who submitted declarations in
connection with the currently pending cross motions for summary judgment.
II. DISCUSSION
Federal Rule of Civil Procedure 26(a)(1)(A)(i) provides that a party must provide to the
other parties “the name and, if known, the address and telephone number of 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.” Pursuant to Rule 26(e) these initial
disclosures must be supplemented “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 make known to the other parties during the discovery process
or in writing.”
Federal Rule of Civil Procedure 37(c)(1) provides that where a party “fails to provide
information or identify a witness as required by Rule 26(a) or (e), 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.”
A.

JASON HORNADY
Turning first to Mr. Hornady, Plaintiff appears to concede that Mr. Hornady was not

properly disclosed and that the failure was not justified or harmless. In its opposition, Plaintiff
mounts no defense for Mr. Hornady beyond the conclusory statement that “[Mr. Hornady’s
testimony is completely duplicative of Neil Davies’ testimony, who was disclosed in [Plaintiff’s]

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initial disclosures.”2 Plaintiff cites no authority for the proposition that testimony that is
duplicative of that given by a disclosed witness should be allowed from an undisclosed witness,
and this Court is unwilling to set such a precedent. The Court will therefore grant Defendant’s
Motion as to Mr. Hornady.
B.

KATHY McHALE
With regards Ms. McHale, the issue is much closer. The parties do not dispute that Ms.

McHale is a witness subject to the requirements of Rule 26(a)(1)(A)(i). Thus, this issue turns on
(1) whether Plaintiff adequately complied with the requirements of Rule 26(a) and (e) by
providing Defendant sufficient notice, in a timely manner, as to Ms. McHale’s name, contact
information, and the subject matter of discoverable information she might provide and, if not, (2)
whether such failure was substantially justified or harmless.
The first notice Defendant received as to Ms. McHale’s name was provided on the last
day of discovery. At that time, Plaintiff provided Defendant with a two-line internal email Ms.
McHale sent to Neil Davies. The body of that email states: “Neil, I have gotten some phone calls
in the past asking if we made Double Tap Ammunition. I explained to the customers that our
ammunition is TAP, not Double TAP and that I didn’t know what that was.”3 The email also
contained a standard signature block, containing Ms. McHale’s name, title, phone, and fax
information. Plaintiff did not draw any special attention to the email beyond including it in its
final document production.

2

Docket No. 219, at 2 n.1.

3

See Docket No. 228 Ex. 3.
3

Subsequently, in March 2012, Plaintiff produced to Defendant a letter it had received
from a customer, and Ms. McHale’s response to that letter. In June and July of 2012, Plaintiff’s
damages experts produced reports in which they both referenced the letter and the response
drafted by Ms. McHale.
On December 13, 2012, Plaintiff filed a motion for summary judgment. In support of its
motion, Plaintiff filed a declaration from Ms. McHale. According to Ms. McHale’s declaration,
she has “worked for [Plaintiff] for 13 years as a law enforcement sales associate . . . [and]
handle[s] all aspects of communication and sales with law enforcement agencies and
distributors.”4 Ms. McHale declared that: “In or around 2009-2010, [she] received approximately
half a dozen calls from law enforcement officers and agencies asking whether [Plaintiff] makes
[Defendant’s] ammunition or whether [Doubletap] is one of [Plaintiff’s] brands.”5 Ms. McHale
also indicated that “[i]n March 2012, [she] received a letter from the Scott County Sherriff’s [sic]
Office in Arizona,” that she subsequently responded to.6 Ms. McHale’s declaration included
copies of both letters as exhibits.7
On February 27, 2013, Plaintiff sought to supplement its initial disclosures to include Ms.
McHale as a witness likely to have discoverable information that it may use to support its claims.

4

Id.

5

Id.

6

Id. The letter in question is actually from the Scott County Sheriff’s Office in Arkansas.

7

See Docket No. 137 Ex. 7.
4

Plaintiff argues that it met the requirements of Rule 26(e) because Ms. McHale was
otherwise made known to Defendant during the discovery process. In so arguing, Defendant
relies on the disclosure of the internal email from Ms. McHale to Mr. Davies and the subsequent
disclosure of the letter Plaintiff received from the Scott County Sheriff’s Office and Ms.
McHale’s response. Under Plaintiff’s theory, its disclosure obligations were met because
Defendant should have known that Ms. McHale would have discoverable information based on
its production of its internal email and the Scott County letters.
Plaintiff’s reading of the rules eviscerates the requirements of Rule 26(a) and (e). “The
aim of Rule 26(a)(1) . . . is to identify at the outset those persons that may have any information
relevant to the case in order to allow for a complete investigation by all parties, thus allowing
parties to depose, interview, or subpoena documents of such individuals during the period of time
set aside for discovery.”8
Here, it is undisputed that Ms. McHale was in the Plaintiff’s employ at the time this case
was filed. Further, Ms. McHale attests that she received phone calls demonstrating customer
confusion during the 2009 to 2010 time frame. As such, Ms. McHale was an individual with
information relevant to the case and Defendant should have been given an opportunity to conduct
discovery regarding her involvement during the discovery period. A single email, disclosed in
and amongst other discovery materials on the last day of discovery, is insufficient to put
Defendant on notice of Ms. McHale’s identity and the subject matter of discoverable information

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Quesenberry v. Volvo Grp. N. Am., Inc., 267 F.R.D. 475, 480 (W.D. Va. 2010).
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she might provide. For this reason, the Court finds that Plaintiff failed to properly supplement, in
a timely manner, its initial disclosures to include Ms. McHale.
Because Plaintiff failed to identify a witness as required by Rule 26(a) and (e), Plaintiff is
not allowed to use that witness to supply evidence in this case unless the failure was substantially
justified or is harmless.9 The following factors guide the Court in determining whether
Plaintiff’s late disclosure was substantially justified or harmless: “(1) the prejudice or surprise to
the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice;
(3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving
party’s bad faith or willfulness.”10
Plaintiff asserts that Defendant will not be prejudiced by Ms. McHale’s testimony
because it will “make Ms. McHale available for deposition in Salt Lake City on virtually any day
that will work for [Defendant’s] counsel.”11 Defendant contends that “in view of the mountain of
work left to be performed prior to trial, and the numerous motions pending before the Court, it
seems unlikely that the instant Motion will be resolved prior to trial. As such, Ms. McHale’s last
minute deposition would disrupt trial.”12 The trial is scheduled to commence in approximately
one month. Thus, there is sufficient time for Defendant to depose and conduct discovery as to
Ms. McHale. Therefore, any prejudice that Defendant has suffered as a result of the late
9

See Fed. R. Civ. P. 37(c)(1).

10

Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.

11

Docket No. 219, at 13.

12

Docket No. 228, at 11.

1999).

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disclosure is easily cured. Further, the Court would note that, given the focus on Ms. McHale’s
response letter in the deposition of the parties’ expert witnesses and the production of the internal
email, it is unlikely that Defendant was unduly surprised by Ms. McHale’s late disclosure.
Next, the Court finds that introducing Ms. McHale’s testimony will not disrupt the trial
currently scheduled. The evidence to which Ms. McHale is likely to testify was submitted to the
Court on summary judgment and the parties have filed various motions regarding that evidence’s
admissibility. Finally, the Court finds that Plaintiff did not act in bad faith in failing to disclose
Ms. McHale. While Ms. McHale attests that she received phone calls from customers
demonstrating confusion during the 2009 to 2010 time frame, Plaintiff asserts that it did not
become aware of that fact until near the close of discovery. Plaintiff’s lack of diligence in
ascertaining those employees who have discoverable information may be described as willful,
but, the Court does not believe that Plaintiff acted in bad faith.
After weighing the foregoing factors, the Court finds that Plaintiff’s failure to properly
disclose Ms. McHale was harmless. As such, the Court will allow Ms. McHale to testify at trial
and will consider her declaration in its review of the parties’ cross motions for summary
judgment.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Defendant’s Fifth Motion in Limine (Docket No. 207) is GRANTED IN
PART AND DENIED IN PART. Pursuant to the terms of this Order, Plaintiff shall make Ms.
McHale available to Defendant for deposition in Salt Lake City.

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DATED April 18, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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