United States District Court, D. Connecticut
RULING ON MOTION 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. On February 17, 2017, less
than two weeks before the scheduled trial date, Mr. Barham
filed a motion [ECF No. 370] seeking to preclude the
testimony of three witnesses proposed by Defendants: Kerri
Crunkilton,  John Flowers and Kakisha Smith. Barham
Mot., ECF No. 370. For the reasons outlined below, Mr.
Barham's  motion to preclude witnesses is DENIED.
Factual and Procedural Background
case was previously scheduled to proceed to trial on
September 6, 2016. See Amended Scheduling Order, ECF
No. 281. In advance of that trial date, the parties submitted
trial memoranda outlining witnesses, exhibits and anticipated
evidentiary issues. Defs.' Trial Mem., ECF No. 305; Pls.
Trial Mem., ECF No. 310. Defendants listed Kerri Crunkilton,
John Flowers and Kakisha Smith as witnesses in their trial
memorandum, and Plaintiffs did not object to their inclusion.
request of Plaintiffs' counsel, on August 12, 2016 the
Court granted a continuance of the jury trial, rescheduling
the trial date to October 11, 2016. Order, ECF No. 315. On
further requests for extension of time, the Court granted an
additional continuance on September 30, 2016, setting the
trial date for late February 2017. Order, ECF No. 338. Mr.
Barham did not depose either Kerri Crunkilton, John Flowers
or Kakisha Smith in advance of trial, nor did they object to
these three witnesses until February 17, 2017, within one
week of the scheduled final pre-trial conference.
Standard of Review
Rule 26(a), parties to a litigation are required to make
initial disclosures stating “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.” Fed.R.Civ.P. 26(a)(1)(A). Parties
must supplement their Rule 26(a) disclosures when they learn
that the information provided in their initial disclosures
was incomplete. Fed.R.Civ.P. 26(e)(1)(A). “If 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.” Fed.R.Civ.P.
Court has the ultimate discretion on whether to preclude
witnesses from testifying at trial pursuant to Rule
37(c)(1).” Leong v. 127 Glen Head Inc., No.
CV135528 (ADS) (AKT), 2016 WL 845325, at *6 (E.D.N.Y. Mar. 2,
2016) (internal citations and marks omitted). When
considering whether to preclude witness testimony, district
courts in this Circuit are instructed to assess several
factors, including “the prejudice suffered by the
opposing party” and “the possibility of a
continuance.” Reilly v. Natwest Markets Grp.
Inc., 181 F.3d 253, 269 (2d Cir. 1999) (quoting
Softel, Inc. v. Dragon Medical and Scientific
Communications, Inc., 118 F.3d 955, 961 (2d Cir. 1997)).
Barham now seeks to preclude three witnesses from testifying
at the upcoming trial of Mr. Barham's claims: Kerri
Crunkilton, John Flowers and Kakisha Smith. Barham Mot., ECF
No. 370. Mr. Barham's objection to these three witnesses
is noted in the Second Amended Joint Trial Memorandum with
respect to Mr. Barham's case. Second Am. Joint Trial
Mem., ECF No. 367. According to Mr. Barham, these witnesses
were not disclosed in Defendants' initial disclosures,
nor were they listed as potential 30(b)(6) witnesses during
the course of discovery, thus their testimony at trial should
be precluded under Fed.R.Civ.P. 37(c)(1) for failure to
comply with Fed.R.Civ.P. 26(a). Barham Mem. in Supp., ECF No.
372-1. Mr. Barham also seeks an order prohibiting Defendants
from defending against Mr. Barham's claims as well as the
issuance of a default judgment with respect to Mr.
Barham's retaliatory failure to rehire claim.
Id. at 14.
Rule 37(c)(1), a party's non-compliance with the
disclosure requirements of Rule 26 generally results in the
preclusion of improperly disclosed witnesses, unless the
Court finds that the non-compliance was
“harmless.” Fed.R.Civ.P. 37(c)(1); see also
Alfano v. National Geographic Channel, No. CV 06-3511
(NG) (JO), 2007 WL 2982757 (Oct. 5, 2007 E.D.N.Y.)
(prohibiting testimony of witness not named in Rule 26
disclosures or supplemental disclosures during discovery);
Ehrlich v. Incorporated Village of Sea Cliff, No. CV
04-4025 (LDW) (AKT), 2007 WL 1593223, *3 (Jun. 1, 2007
E.D.N.Y.) (precluding testimony of witness not disclosed
until “the eve of trial.”). Mr. Barham argues
that Defendants' non-compliance with Rule 26 was not
“harmless, ” claiming that he would be prejudiced
if this Court were to allow the testimony of the three
evaluating the propriety of a district court's decision
whether to preclude witness testimony, the Second Circuit
considers “the following factors: (1) the party's
explanation for the failure to comply with the discovery
order; (2) the importance of the testimony of the precluded
witness; (3) the prejudice suffered by the opposing party as
a result of having to prepare to meet the new testimony; and
(4) the possibility of a continuance.” Reilly,
181 F.3d at 269 (quoting Softel, Inc, 118 F.3d at
961). Considering these four factors as a whole, the Court
concludes that Defendants' non-compliance with the Rule
26(a) disclosure requirements was “harmless” and
thus, preclusion is not necessary under Fed.R.Civ.P.
have not provided a strong explanation for their failure to
comply with Rule 26(a), and neither party has addressed the
relative importance of the testimony of the late-disclosed
witnesses. Rather, the parties' arguments focus
on the element of prejudice. Mr. Barham claims that
Defendants' non-compliance with Rule 26 prevented him
from deposing these witnesses or fully taking discovery in
advance of trial. However, the record is clear that, in light
of the continuance of the jury trial in this matter, the
delay in disclosing these witnesses did not result in
prejudice to Mr. Barham.
three of the contested witnesses were listed as witnesses in
the Trial Memorandum submitted by Defendants on August 5,
2016, approximately six months before the operative Joint
Trial Memorandum was filed. Defs.' Trial Mem. at 6-9, ECF
No 305. Plaintiffs did not make any objection to the
inclusion of these witnesses at that time. On September 30,
2016, when the Court formally continued the scheduled jury
trial in this matter to begin in late February, 2017,
Plaintiffs had over four months to seek depositions of these
three late-disclosed witnesses in advance of trial. However,
they did not attempt to obtain ...