Wagafe et al v. United States Citizenship and Immigration Services et al

Filing 410

ORDER granting in part and denying in part Plaintiffs' 397 Motion to Exclude. The Court DENIES Plaintiffs' motion to exclude untimely disclosed witnesses and GRANTS Plaintiffs' request to conduct four additional depositions. Signed by Judge Richard A. Jones. (LH)

Case 2:17-cv-00094-RAJ Document 410 Filed 08/27/20 Page 1 of 3

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ABDIQAFAR WAGAFE, et al.,

No. 2:17-cv-00094-RAJ

Plaintiffs,
v.

ORDER

DONALD TRUMP, PRESIDENT OF THE
UNITED STATES, et al.,

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Defendants.

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I.

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This matter comes before the Court on Plaintiffs’ Motion to Exclude Untimely
Disclosed Witnesses. Dkt. # 397. For the reasons below, the motion is DENIED in part
and GRANTED in part.
II. DISCUSSION

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INTRODUCTION

A.

Case Schedule and Modifications

On October 24, 2019, the Court entered an order, continuing the trial date and
revising the case schedule. Dkt. # 298. The order made the following modifications:
Deadline to Complete Discovery (other than expert discovery and all depositions),
which extension does not authorize new written discovery requests (other than
requests to admit) or subpoenas for document production is 11/29/2019, Deadline
to File Discovery-Related Motions is 12/20/2019, Expert Witness
Disclosures/Reports Under FRCP 26(a)(2) is 1/31/2020, Deadline for Depositions
(other than of experts) is 2/14/2020, Responsive Expert Witness Disclosure/
Reports Under FRCP 26(a)(2) is 3/13/2020, Deadline to Complete Expert
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Discovery (including all expert depositions) is 4/6/2020, Deadline for filing
dispositive motions is 5/11/2019 . . .
Id.

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Later, the Court modified the case schedule again. Dkt. # 305. The Court

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extended the deadline to file discovery-related motions and the deadline to serve

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disclosures and reports of expert witnesses and responsive expert witnesses. Id. The

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deadline for serving expert witness disclosures was scheduled for February 28, 2020. Id.

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As set forth in this scheduling order, the parties, in fact, served expert reports

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February 28, 2020. Dkt. # 398 at 2. Rebuttal expert reports were due a month later, but

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on March 26, 2020, given the challenges created by the COVID-19 pandemic, the Court

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adopted the parties’ joint stipulated motion (Dkt. # 348) and temporarily suspended the

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case schedule. Dkt. # 349. In April of this year, Defendants notified Plaintiffs that they

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intended to respond to Plaintiff’s expert reports with new factual evidence, and Plaintiffs

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objected because, they claimed, fact discovery had been completed. Dkt. # 359 at 4. In

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May of this year, Defendants revealed they had made errors in CARRP-related data,

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which required experts to review and revise their reports. Dkt. # 397 at 4. Plaintiffs

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provided revised expert reports on July 1, 2020, as agreed upon by the parties. Id. ¶ 8.

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B.

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On July 2, 2020, Defendants served their fifth set of supplement initial disclosures

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identifying new witnesses. Dkt. # 404 at 5. Plaintiffs objected to Defendants’ disclosure

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of “multiple new fact witnesses, all of whom are employees of Defendants,” (Dkt. # 398

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¶ 10) arguing that such a disclosure was untimely because the November 29, 2019

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deadline for disclosing fact witnesses had passed (Dkt. # 397 at 8). Defendants do not

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dispute that their disclosed witnesses are indeed “fact witnesses,” but they argue that they

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are not untimely because (1) they are “responsive” factual witnesses to Plaintiffs’ “expert

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witnesses,” whom Defendants allege are actually fact witnesses, and (2) “the significant

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discovery continues in this case, including fact discovery.” Dkt. # 404 at 2.

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Motion to Exclude Witnesses Disclosed on July 2, 2020

Despite Defendants’ claims that Plaintiffs withheld information about nine
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Case 2:17-cv-00094-RAJ Document 410 Filed 08/27/20 Page 3 of 3

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witnesses until the “the last possible moment in the discovery process” and mislabeled

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them “expert witnesses” when they were fact witnesses, Defendants did not object to

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Plaintiffs’ characterization of these witnesses or to the timing of their disclosure on the

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February 28, 2020 deadline for disclosing expert witnesses. Instead, Defendants waited

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until July 2, 2020 to disclose potential factual witnesses to respond to Plaintiffs’ alleged

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expert witnesses.

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Defendants’ position on discovery here is a stretch of the Court’s order, Dkt.

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# 298, but in the interest of fairness, the Court is not inclined to exclude responsive

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witnesses. Instead, the Court will grant Plaintiffs’ request in the alternative for leave to

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conduct four additional depositions. Dkt. # 397 at 13. As proposed by Plaintiffs, the

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opportunity to take additional depositions would be an adequate remedy for the manner

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in which Defendants’ witnesses were disclosed to ensure “that Plaintiffs are not

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ambushed at trial.” Id. Indeed, this remedy will mitigate harm and prejudice to Plaintiffs

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by allowing them to learn what information these witnesses intend to offer at trial and

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prepare accordingly.

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III. CONCLUSION

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For the foregoing reasons, the Court DENIES Plaintiffs’ motion to exclude

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untimely disclosed witnesses and GRANTS Plaintiffs’ request to conduct four additional

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depositions.

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DATED this 27th day of August, 2020.

A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 3