United States District Court, D. Connecticut
RULING ON MOTION TO PRECLUDE
A. BOLDEN, UNITED STATES DISTRICT JUDGE
Kim Hannah, and Defendants, Wal-Mart Stores, Inc. and
Wal-Mart Stores East, L.P. (together “Walmart”),
are scheduled to begin a jury trial on April 3,
2017. Scheduling Order, ECF No. 419. On March
10, 2017, less than two weeks before the scheduled jury
selection and two weeks before the final pre-trial conference
in this matter, Ms. Hannah filed a motion [ECF No. 437]
seeking to preclude the testimony of seven witnesses proposed
by Defendants: Kerri Crunkilton,  Ginger Beck, Brandy Chase,
Holly Meredith, David Minsky, Kakisha Smith, and Matthew
Waters. Hannah Mot., ECF No. 437. For the reasons outlined
below, Ms. Hannah's  motion to preclude witnesses is
Factual and Procedural Background
litigation has been marked by numerous discovery-related
disputes and significant judicial intervention in the
discovery process. Several years ago, the parties filed
initial disclosures under Fed.R.Civ.P. 26 identifying
individuals with potentially discoverable information. It is
undisputed that Defendants' initial disclosures did not
include any of the seven individuals listed in Ms.
Hannah's motion to preclude.
discovery in this matter, Defendants identified Sharon
Williams as their sole corporate designee under Fed.R.Civ.P.
30(b)(6). After the 30(b)(6) deposition, Plaintiffs
complained that Ms. Williams' deposition testimony was
inadequate, as Ms. Williams was unable to provide specific
information about the positions to which Plaintiffs applied
following the termination of their employment with Walmart.
On July 28, 2014, United States Magistrate Judge Holly B.
Fitzsimmons issued two discovery-related rulings requiring
Defendants to provide additional documentation regarding each
of the positions that were not fully addressed in Ms.
Williams' 30(b)(6) deposition. Discovery Rulings, ECF No.
160 and ECF No. 161. In accordance with those orders,
Defendants produced additional documentation in August 2014
listing the hiring managers and recruiters for each of the
positions at issue. Through that document production,
Defendants identified, for the first time, all seven of the
individuals whose testimony Ms. Hannah now seeks to preclude.
Plaintiffs' counsel did not seek leave to depose any of
those individuals at that time.
years later, in August 2016, Defendants specifically notified
Plaintiffs of their intent to have these seven individuals
testify as trial witnesses. Defs.' Trial Mem., ECF No.
305. As this case was previously scheduled to proceed to
trial on September 6, 2016, see Amended Scheduling
Order, ECF No. 281, the parties submitted trial memoranda in
August 2016 outlining all intended witnesses, exhibits and
anticipated evidentiary issues. Defs.' Trial Mem., ECF
No. 305; Pls. Trial Mem., ECF No. 310. Defendants listed
Kerri Crunkilton, Ginger Beck, Brandy Chase, Holly Meredith,
David Minsky, Kakisha Smith, and Matthew Waters as trial
witnesses in their trial memorandum, and Plaintiffs'
counsel did not object to their inclusion at that time.
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, see
Order, ECF No. 338. On January 6, 2017, the Court granted a
motion to separate the jury trials of the two remaining
Plaintiffs in this matter, Order, ECF No. 362, resulting in
the additional postponement of the jury trial of Ms.
Hannah's claims to a date after March 20, 2017.
Scheduling Order, ECF No. 369. In light of the separation of
jury trials in this matter, the Court ordered the parties to
submit a revised joint trial memorandum for each case by
February 3, 2017. Order, ECF No. 366.
February 3, 2017 joint trial memorandum, Defendants again
identified Kerri Crunkilton, Ginger Beck, Brandy Chase, Holly
Meredith, David Minsky, Kakisha Smith, and Matthew Waters as
intended trial witnesses in Ms. Hannah's case. Hannah
Joint Trial Mem. at 8-11, ECF No. 368. Plaintiffs'
counsel formally objected to this testimony for the first
time in this joint trial memorandum. Id. However,
Plaintiffs' counsel never filed a motion in
limine to preclude the testimony of these witnesses, nor
did she request leave to depose these witnesses until March
10, 2017, when she filed the instant motion to preclude. Mot.
to Preclude, ECF No. 437.
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)).
Hannah now seeks to preclude seven witnesses from testifying
at the upcoming trial of her claims: Kerri Crunkilton, Ginger
Beck, Brandy Chase, Holly Meredith, David Minsky, Kakisha
Smith, and Matthew Waters. Hannah Mot., ECF No. 437. Two of
these individuals, Kerri Crunkilton and Kakisha Smith, were
the subject of a similar motion to preclude that was filed in
connection with the jury trial of Mr. Barham's claims.
Barham Mot., ECF No. 370. The Court denied Mr. Barham's
motion, determining that, because Defendants had clearly
disclosed all intended trial witnesses in their August 2016
trial memorandum, “Defendants' non-compliance with
the Rule 26(a) disclosure requirements was
‘harmless'” and preclusion was unnecessary.
Order at 4, ECF No. 381.
Court can identify no reason to deviate from its prior ruling
here. The memorandum in support of Ms. Hannah's motion to
preclude repeats many of the same arguments that were
previously considered and rejected in the Court's ruling
on Mr. Barham's motion to preclude. As was the case with
the individuals listed in Mr. Barham's motion to
preclude, Defendants' August 2016 trial memorandum
clearly identified all of the individuals listed in Ms.
Hannah's motion to preclude. Defs. Trial Mem. at 8-11,
ECF No. 368. Particularly in light of the numerous delays in
the scheduled jury trial of this matter following the filing
of the ...