Whitford, William et al v. Nichol, Gerald et al

Filing 306

ORDER denying 282 Motion to Strike Plaintiffs' Supplemental Disclosures by Intervenor Defendant Wisconsin State Assembly. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson 6/21/2019. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM WHITFORD, GRAHAM ADSIT,
ROGER ANCLAM, WARREN BRAUN,
HANS BREITENMOSER, JUDITH BREY,
BRENT BRIGSON, EMILY BUNTING,
SANDRA CARLSON-KAYE, GUY COSTELLO,
TIMOTHY B. DALEY, MARGARET LESLIE
DEMUTH, DANIEL DIETERICH, MARY LYNNE
DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA,
BARBARA FLOM, HELEN HARRIS,
GAIL HOHENSTEIN, WAYNE JENSEN,
WENDY SUE JOHNSON, MICHAEL LECKER,
ELIZABETH LENTINI, NORAH MCCUE,
JANET MITCHELL, DEBORAH PATEL,
JANE PEDERSEN, NANCY PETULLA,
ROBERT PFUNDHELLER, SARA RAMAKER,
ROSALIE SCHNICK, ALLISON SEATON,
JAMES SEATON, ANN E. STEVNING-ROE,
LINEA SUNDSTROM, MICHAEL SWITZENBAUM,
JEROME WALLACE, DONALD WINTER,
EDWARD WOHL, and ANN WOLFE,

OPINION and ORDER
15-cv-421-jdp

Plaintiffs,
v.
BEVERLY R. GILL, JULIE M. GLANCEY,
ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON,
and MARK L. THOMSEN,
Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.

Defendants (including the intervenor-defendants) move to strike four witnesses that
plaintiffs identified in supplemental disclosures served on May 15, 2019. Dkt. 282. Three of
the witnesses—Sandy Pasch, Amy Sue Vruwink, and Peter Barca—were Representatives in the

Wisconsin State Assembly after the enactment of Act 43, the Assembly districting plan that
plaintiffs are challenging in this case. The fourth witness—Brittany Keyes—was a candidate for
the Assembly in 2018. All are Democrats and all ran for office in a district where one of the
plaintiffs lives. Plaintiffs say that each of these witnesses may testify about the partisan intent
and effect of Act 43. Dkt. 284-1. Defendants contend that plaintiffs’ disclosure of these
witnesses was untimely and prejudicial, so the court should preclude the witnesses from
testifying at trial under Federal Rule of Civil Procedure 37. Dkt. 282.
We are not persuaded that the disclosure was untimely. When the case came back after
remand from the Supreme Court, this court set September 28, 2108 as the deadline for the
parties to update initial disclosures under Ruel 26(a)(1). Dkt. 199, at 2. Of course, the parties
had a duty under Rule 26(e) to supplement these disclosures if they learned that their
disclosure were materially incomplete. In a later scheduling order, Dkt. 248, the court set June
14, 2019, as the deadline for the pretrial disclosures under Rule 26(a), which means that is the
date to disclose trial witnesses. Plaintiffs’ four new witnesses were disclosed about a month
before the deadline for disclosing trial witnesses, and two months before the start of the trial.
We see no violation of the court’s scheduling order.
We don’t buy plaintiffs’ statement that they disclosed these trial witness only as a
courtesy, with no obligation to do so. Once plaintiffs decided that they wanted these four to
testify at trial, they were obligated to supplement their initial disclosures. But we see no
evidence—despite defendants’ accusation—that plaintiffs were deceptive for not disclosing
these four witnesses before May 15.
We are also not persuaded that the disclosures were unfairly prejudicial. The topics
identified in the disclosures (and further elaborated on in the briefs) are topics that are central

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to the case, so they should not be a surprise to defendants. The primary topic discussed in the
parties’ briefs is the effect that Act 43 had on a particular district, and thus the injury suffered
by particular plaintiffs, a topic that has been addressed by witnesses on both sides, including
experts, as acknowledged by defendants in their motion. Dkt. 282, at 7 n.3 (citing report of
Assembly’s expert regarding Assembly election results). Defendants have not explained why
they believe that they will not be able to fairly respond to any testimony offered by the new
witnesses.
When plaintiffs disclosed the four new witnesses, there were two months remaining
before trial. Defendants acknowledge that have submitted requests for written discovery related
to the new witnesses. Id. at 10, n.5. Defendants do not say that they have asked to depose the
new witnesses, but that was their choice. There are numerous lawyers representing the parties
on both sides of this case, so defendants can assign one the task of deposing these witnesses if
they want their depositions before trial. Defendants have been willing to push a lot of work
into July, in hopes that a Supreme Court decision will moot this case and make it all
unnecessary. That’s a reasonable calculated risk, but it undermines the defendants’ claim of
unfair prejudice.
Defendants’ motion to strike is denied. Whether the testimony of these new witnesses
is relevant is a question the court will be able to answer only after we get guidance from the
Supreme Court.

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ORDER
IT IS ORDERED that defendants’ motion to strike plaintiffs’ May 15, 2019
supplemental disclosures, Dkt. 282, is DENIED.
Entered June 21, 2019.
BY THE COURT:
/s/________________________________________
KENNETH F. RIPPLE
Circuit Judge
/s/________________________________________
WILLIAM C. GRIESBACH
District Judge
/s/________________________________________
JAMES D. PETERSON
District Judge

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