United States District Court, D. Connecticut
TMI TRUST COMPANY, solely in its capacity as Separate Trustee of the Securitized Asset Backed Receivables LLC Trust 2006-WM2, Plaintiff,
WMC MORTGAGE, LLC f/k/a WMC MORTGAGE CORP., Defendant.
RULING ON PLAINTIFF'S MOTION TO STRIKE CERTAIN
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
TMI Trust Company ("TMI") has filed a motion [Doc.
228] to strike "previously undisclosed witnesses"
from the list of trial witnesses submitted by Defendant WMC
Mortgage, LLC ("WMC"). Defendant opposes that
motion. Counsel for the parties submitted briefs and argued
the motion during the course of a hearing before the Court on
December 5, 2017. This Ruling resolves the motion.
in this case is scheduled to begin on January 16, 2018. WMC
filed a witness list dated November 22, 2017 [Doc. 229-3].
The list "identifies the following witnesses that it may
call at the trial in this matter." The list refers to 25
fact witnesses and four expert witnesses. TMI's motion
sought an order striking eight of the fact witnesses. TMI
contends it is entitled to that relief because "the
Federal Rules of Civil Procedure prohibit a party from
offering a witness at trial that [sic] was not
previously disclosed in accordance with Fed.R.Civ.P.
26." Doc. 228 at 1. WMC's opposing papers withdraw
two of the eight individuals from the witness list. The
remaining contest concerns the other six individuals. They
are all current employees of WMC.
26, upon which TMI relies, contains two provisions with
respect to disclosure of individuals. Rule 26(a)(1),
captioned "Initial Disclosure, " requires each
party, "without awaiting a discovery request, " to
provide to the other parties the name "of each
individual likely to have discoverable information . . . that
the disclosing party may use to support its claims or
defenses, unless the use would be solely for
impeachment." Rule 26(a)(3), captioned "Pretrial
Disclosures, " provides in Rule 26(a)(3)(A)(i) that each
party must provide to the other parties the name "of
each witness - separately identifying those the party expects
to present and those it may call if the need arises."
Rule 26(a)(3)(B) provides that "Unless the court orders
otherwise, those disclosures must be made at least 30 days
case at bar, WMC's listing of the six contested
individuals as witnesses complied with Rule 26(a)(3), since
they were identified as witnesses almost two months before
the trial will start, as opposes to the 30 days allowed by
the Rule. However, TMI contends that WMC violated Rule
26(a)(1) by not sooner identifying these individuals as
having information WMC "may use to support its claims or
defenses, " and that WMC's failure in that regard is
sufficiently egregious to justify preclude them from
testifying at the trial (notwithstanding WMC's timely
listing under Rule 26(a)(3)).
without deciding that a party's delay in identifying
individuals under Rule 26(a)(1) may be so extreme, and the
resulting prejudice to other parties so severe, that an
individual may be precluded from testifying at trial even if
timely listed as a witness under Rule 26(a)(3), this is not a
case where that extreme sanction should be meted out to WMC,
the disclosing party. I accept that at an earlier date, WMC
could, even arguably should, have identified these six
individuals as potential witnesses or sources of probative
evidence on WMC's claims or defenses. On the other hand,
as this complex and difficult case draws closer to trial, the
boundaries of intended or anticipated proof begin to take on
the characteristics of (to combine metaphors) a moving target
or a moveable feast. For example: The evidence that WMC
contemplates eliciting from two of the contested six (Ken
Huber and Ian Mitchell) is provoked or inspired by testimony
given by a TMI witness, David Gitson, who the Court allowed
(over WMC's objection) to give a de bene esse
deposition which was taken in California just last Friday,
December 1. A number of district courts subscribe to the
philosophy that "[p]reclusion of evidence is generally a
disfavored action, " Preuss v. Kolmar Labs,
Inc., 970 F.Supp.2d 171, 175 (S.D.N.Y. 2013) (citing and
quoting cases), a sentiment I share, as one charged in this
bench trial with fashioning a just result (as opposed to
pursuing a tactical advantage).
just result on this motion, I conclude, is to allow these
individuals to testify as witnesses at trial, if between now
and then WMC complies with conditions whose purpose is to
prevent unfair prejudice to TMI. Those conditions are as
* WMC must forthwith provide counsel for TMI with a detailed
written description, in the form of an offer of proof, with
respect to the testimony WMC contemplates eliciting from each
individual if called as a witness for WMC at trial.
* If requested by counsel for TMI, WMC must present each
individual for a deposition by TMI, at a place reasonably
requested by TMI, with WMC to bear all expenses of the
deposition except for TMI's attorneys' fees. Those
depositions must be scheduled in a manner that does not
unreasonably interfere with the preparations of TMI's
counsel for trial.
Court relies upon the able attorneys for these parties,
acting in characteristic good faith, to agree upon the manner
in which these conditions will be satisfied. If disputes
arise, the Court will resolve them.
these conditions are not satisfied in respect of a particular
individual, that individual will not be permitted to testify
result of this Ruling, entered in the exercise of the
Court's discretion, is that Plaintiff's motion to
strike the names of the individuals in question from
Defendant's witness list is DENIED. This aspect ...