United States District Court, D. Connecticut
RULING ON MOTIONS TO PRECLUDE
A. BOLDEN, UNITED STATES DISTRICT JUDGE
Michael Barham, and Defendants, Wal-Mart Stores, Inc. and
Wal-Mart Stores East, L.P. (together “Wal-Mart”),
are scheduled to begin a jury trial on February 28, 2017.
Scheduling Order, ECF No. 369. The final pre-trial conference
was held today, February 22, 2017.
February 21, 2017, Mr. Barham filed a motion to quash and/or
preclude the trial deposition testimony of Trent Burner, one
of Defendants' witnesses, who is currently scheduled to
be deposed on February 24, 2017. Emergency Mot., ECF No. 378.
On February 22, 2017, the same day of the final pre-trial
conference, Defendants filed a notice seeking to amend the
witness list included in the parties' February 3, 2017
Joint Trial Memorandum by removing Kakisha Smith and adding
Ronald Ealey, see Am. Witness List, ECF No. 380, to
which Mr. Barham objected during the final pre-trial
conference. Oral Mot., ECF No. 383. For the reasons outlined
below, Mr. Barham's  and  motions are GRANTED.
Motion to Quash/Preclude Trial Deposition Testimony of Trent
Burner [ECF No. 378]
February 6, 2017, Defendants notified Plaintiff that they
intended to conduct a trial deposition of Trent Burner in
Arkansas the week before jury trial. Pls. Mem. in Supp. at 1,
ECF No. 387-1. The Joint Trial Memorandum submitted by the
parties on February 3, 2017 lists Mr. Burner as a trial
witness for Defendants, and the Joint Trial Memorandum notes
Plaintiff's objection to the potential inclusion of Mr.
Burner's deposition testimony at the jury trial. After
receiving notice that Defendants intended to go forward with
the deposition of Mr. Burner on February 24th,
2017, Plaintiff filed a motion to quash the deposition and
preclude the introduction of the deposition testimony.
Plaintiff's motion is granted.
September 30, 2016, the jury trial as to Mr. Barham has been
scheduled for late February, 2017, allowing Defendants
several months to select an appropriate date for the trial
deposition of Mr. Burner. Nonetheless, Defendants chose to
schedule this out-of-state deposition the week before trial.
Furthermore, Defendants indicated at the final pre-trial
conference that the substance of Mr. Burner's testimony
would focus on the corporate reorganization that led to Mr.
Barham's termination. Defendants, however, sought to
preclude testimony on this very topic in their  motion
in limine, claiming that such testimony would be
irrelevant to the remaining claims in this case. Defs. Mem.
in Supp. of Mot. in Limine at 4-5, ECF No. 306.
Rule 32 of the Federal Rules of Civil Procedure, deposition
testimony may be used at trial where “the party was
present or represented at the taking of the deposition or had
reasonable notice of it.” Fed.R.Civ.P. 32(a)(1)(A).
“[T]he reasonableness of notice must be determined in
light of the facts and circumstances of the individual
case.” Davidson v. Dean, 204 F.R.D. 251, 256
(S.D.N.Y. 2001). “When a party opposes a trial
deposition scheduled after the close of discovery ... the
court should consider a variety of factors in making this
determination, including the unavailability of the witness
for trial, the potential for prejudice to the opposing party,
and whether the deposing party knew the information the
potential witness would testify to prior to the
deposition…. Special emphasis should be placed on the
potential for prejudice.” Morales v. N.Y. Dep't
of Labor, No. 06-CV-899 (MAD), 2012 WL 2571292, at *2
(N.D.N.Y. July 3, 2012) (internal quotations and marks
Court concludes that it would be unduly prejudicial to allow
the trial deposition to proceed only two business days before
the commencement of jury trial, particularly where, as here,
the proposed testimony would have limited probative value
with respect to the claims before the jury in this case.
Consistent with this Court's ruling on Defendants'
 Motion in Limine, see Order, ECF No. 376, and
considering the difficulties presented to Plaintiff's
counsel by scheduling this deposition the week before the
scheduled jury trial, this testimony would be unfairly
prejudicial at this late stage and is properly excluded.
Barham's  Motion to Quash / Preclude is granted. Mr.
Burner's trial deposition testimony will not be permitted
during the upcoming jury trial in this matter.
Motion to Preclude Testimony of Ronald Ealey [ECF No. 383]
February 22, 2017, more than three weeks after filing the
Joint Trial Memorandum and within hours of the scheduled
final pre-trial conference in this case, Defendants filed a
notice amending the witness list originally provided with
their Joint Trial Memorandum. Am. Witness List, ECF No. 380.
In this list, Defendants sought to exchange one proposed
witness, Kakisha Smith, for another witness, Ronald
argue that, in light of the Court's  Order denying
Mr. Barham's motion to preclude several of
Defendants' late-disclosed witnesses, including Kakisha
Smith, the late insertion of Mr. Ealey as a trial witness is
immaterial. Defendants specifically contend that, because Mr.
Ealey was included in Defendants' August 5, 2016 Trial
Memorandum, Mr. Barham had sufficient notice of Mr.
Ealey's potential testimony at the February 2017 jury
trial. The Court disagrees.
insist that, because Mr. Ealey was listed in Defendants'
initial Trial Memorandum in August 2016, he is in the same
position as the three witnesses who were permitted under the
Court's  Order. However, it is undisputed that Mr.
Ealey was not listed in the parties' February 3, 2017
Joint Trial Memorandum, which provides the operative witness
list in this case. Until today, Plaintiff had no notice that
Defendants intended to call Mr. Ealey as a witness during the
February 2017 jury trial in connection with Mr. Barham's
claims, and Plaintiff's counsel has not had an
opportunity to prepare for inclusion of this testimony at
the Court concludes that it would be inappropriate to grant
leave to amend the witness list at this stage. See
Napolitano v. Compania Sud Americana De Vapores, 421
F.2d 382, 386 (2d Cir. 1970) (affirming denial of leave to
amend witness list, noting that “Defendant's
practice, in a case which had been pending for four years, of
waiting until four days prior to the trial date to identify
his witnesses by name clearly violates both the letter and
the spirit of [Rule 16]”); Sartin v. GT Payroll
Sys., 403 F.App'x 569 (2d Cir. 2010) (affirming
district court's “denial of Appellant's
application to amend his witness list on the eve of
trial”); Eberle v. Town of Southampton, 305