Appeal from judgment on defendants' verdict in section 1983 claims for alleged incidents in 1981 and 1984 of police brutality before the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge. Judgment reversed as to claim arising from 1984 incident for preclusion of eyewitness testimony. Judgment reversed as to claim arising from 1981 incident for admission of evidence of litigiousness.
Oakes, Cardamone, and Mahoney, Circuit Judges.
Plaintiff Willie Outley appeals from a jury verdict in favor of four individual police officers, whom he charged violated his constitutional rights on two separate occasions. Trial was held before Judge Lloyd F. MacMahon in United States District Court for the Southern District of New York. Because the trial court abused its discretion in precluding two eyewitnesses from testifying on the plaintiff's behalf and in admitting evidence of prior lawsuits filed by the plaintiff against the City of New York and others, we reverse and remand.
Outley's two section 1983 claims, 42 U.S.C. 1983 (1982), (consolidated for trial, but tried seriatim) arose from two incidents of alleged police brutality by New York City police officers. The first was related to an arrest on the morning of June 9, 1981 ("the 1981 incident"), and the second to a street stop on March 11, 1984 ("the 1984 incident"). In the 1981 incident Outley claims he was improperly stopped by two police officers, taken against his will to a police station and arrested, denied any opportunity to speak with an attorney or with his wife, and held for seventeen hours in a "small filthy jail cell" before appearing before a magistrate who dismissed the matter. Outley claims that he was treated roughly throughout the detention and subjected to racial insults. He sought compensatory and punitive damages for lost property and for injury to his back.
The 1984 incident allegedly occurred while Outley was walking home from a local store at approximately 6:00 a.m. He was stopped by two police officers who called him over to their patrol car. While Outley stood alongside the passenger side window, one officer allegedly reached out of the window and searched Outley's pockets, at one point pulling on his jacket, causing him to slip and fall down. One of the officers then allegedly warned Outley that he "would regret it" if he reported the incident to any authorities, and the patrol car sped off.
Outley testified that, after getting up, he saw two men, both previously unknown to him, standing at the store he had just left. He asked them if they had seen what had happened, and if they would be willing to testify. They agreed, and Outley then left and walked home.
After these two lawsuits were filed, Outley responded to the defendants' first set of interrogatories, including, inter alia, the names of the two witnesses to the 1984 incident, Ivan Black and Thomas Young, and the fact that they lived in Queens. The plaintiff did not then know the address or telephone number of either Black or Young, and plaintiff's counsel was unable to contact the witnesses until several weeks before trial, finally interviewing them approximately ten days before the trial began. Plaintiff's counsel inadvertently failed to supplement the prior interrogatory response, as required by Fed. R. Civ. P. 26(e),*fn1 so that the City never learned of Black's and Young's addresses. However, the City never contacted plaintiff's counsel with a request for these addresses, and the record indicates no attempt by the City to contact Black or Young or any of the witnesses to the 1981 incident.
The two claims were combined into a single trial which began at 2:00 p.m. on March 3, 1987. Outley's counsel in his opening statement told the jury that they would hear "testimony of two other witnesses to this [the 1984] incident," neither of whom knew Outley at the time. Plaintiff's counsel briefly described what the witnesses' testimony would entail, noting that they would not be able to identify the officers, but that they would testify that the incident took place. On the morning of March 5, after testimony as to the 1981 incident had been completed, the City moved to preclude the testimony of Young and Black on the ground that the plaintiff's failure to supplement his answers to the defendants' interrogatories violated Rule 26(e). After learning that plaintiff's counsel had discovered the addresses at least ten days and probably four or five weeks prior to trial, the court granted the City's request and precluded the witnesses from testifying. Later that day the plaintiff moved that he be allowed to put on the two witnesses and the court, after argument from both sides, denied the motion.
The jury returned a verdict for the defendants in both cases.
Preclusion of eyewitness testimony
Undue delays in individual trials are, of course, to be avoided. The district court's efficient control of its docket is undoubtedly among the most important tools in fighting endemic delay. We recognize also that the trial judge here involved has an enviable record of docket control. However, as we have stressed in the past, tight docket control is not an end in itself. Rather, its purpose is "assuring that justice for all litigants be neither delayed nor impaired." Winston v. Prudential Lines, 415 F.2d 619, 621 (2d Cir. 1969), cert. denied, 397 U.S. 918, 25 L. Ed. 2d 99, 90 S. Ct. 926 (1970). "'[A] court must not let its zeal for a tidy calendar overcome its duty to do justice.'" Id. (quoting Davis v. United Fruit Co., 402 F.2d 328, 331 (2d Cir. 1968), cert. denied, 393 U.S. 1085, 21 L. Ed. 2d 778, 89 S. Ct. 869 (1969)). See also Beary v. City of Rye, 601 F.2d 62, 63 (2d Cir. 1979); Peterson v. Term Taxi Inc., 429 F.2d 888, 891 (2d Cir. 1970). Unfortunately, it appears that here the district court's sense of duty, if not overcome, was at least too strongly influenced by its desire to clear its docket.
Outley's counsel clearly violated Fed. R. Civ. P. 26(e)(1), in failing to provide the City with the address and telephone number of each witness after he learned them. While the rule itself provides no express sanctions for a violation, the Advisory Committee note states that "[t]he duty [to supplement responses] will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the trial court, including exclusion of evidence, continuance, or other action, as the court may deem appropriate." It is worth noting that Fed. R. Civ. P. 37, the general rule concerning sanctions against parties unjustifiably resisting discovery, does not cover the failure to supplement responses. See 8 C. Wright & A. Miller, Federal Practice and Procedure § 2050 (1970 & Supp. 1987). Rather, it is within the inherent power of the district court to impose sanctions for a violation of Rule 26(e). However, cases interpreting Rule 37 are useful in determining the proper approach to be taken by the trial court.
The district court has wide discretion in punishing failure to conform to the rules of discovery. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 49 L. Ed. 2d 747, 96 S. Ct. 2778 (1976) (per curiam) (Rule 37 sanction); Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir. 1979) (same). However, we have not hesitated to reverse when a trial court "permit[s] its zeal for clearing its calendar to overcome the right of a party to a full and fair trial on the merits." Beary v. City of Rye, 601 F.2d at 63. The refusal to allow the plaintiff's ...