Wallace v. Leidos Innovations Corporation et alMEMORANDUM in Support of Motion re MOTION to Strike 35 Witness ListE.D. Tenn.March 28, 20191 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE DAVID W. WALLACE, ) ) Plaintiff, ) ) Case No. 3:17-cv-360 v. ) ) Judge Mattice LEIDOS INNOVATIONS CORPORATION, ) Magistrate Judge Guyton ) Defendant. ) DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S LATE-FILED WITNESS LIST AND/OR MOTION IN LIMINE TO EXCLUDE TESTIMONY OF ANY INDIVIDUAL OTHER THAN PLAINTIFF Defendant, Leidos Innovations Corporation (“Leidos”), respectfully moves this Court to strike Plaintiff’s long-overdue witness list and/or to exclude the testimony of any individual listed therein (other than Plaintiff) at trial. Pursuant to the Court’s Scheduling Order, the parties’ trial witness lists were due on December 11, 2018. Inexplicably, and without seeking this Court’s leave, Plaintiff has filed his pretrial disclosure on March 25, 2019, more than three months after the deadline for doing so expired – causing real harm to Defendant. Plaintiff has not offered (and cannot offer) any good excuse for his delay, and his witness list should be stricken accordingly. I. The Court-Ordered Deadline for Filing Trial Witness Lists, and Plaintiff’s Filing of His Witness List Months Beyond that Deadline Pursuant to subsection (c) of this Court’s October 12, 2017 Scheduling Order: On or before December 11, 2018, each party shall provide to all other parties a final witness list in accordance with Fed. R. Civ. P. 26(a)(3)(A). Within five (5) days after service of this final witness list, the list may be supplemented. After that time, the list may be supplemented only with leave of the Court and for good cause. (Docket No. 12, ¶ (c) (emphasis added)). Notably, this pretrial disclosure deadline occurred during the discovery period, as discovery remained open until December 28, 2019. (See id. ¶ (d)). Thus, Case 3:17-cv-00360-HSM-HBG Document 40 Filed 03/28/19 Page 1 of 5 PageID #: 573 2 if a party made clear in its trial witness list that it intended to call a particular individual at trial, the other party would have time to depose that individual. Now, three and one-half months after the parties’ December 11, 2018, deadline has passed, Plaintiff has belatedly filed his witness list (Docket No. 35) in direct contravention of this Court’s Order. In so doing, Plaintiff has advised Defendant and the Court that he intends to call five (5) witnesses, three (3) of whom are employed by a third party. Plaintiff thereafter lists another seven (7) witnesses he may call, six (6) of whom are employed by a third party. Plaintiff has not sought this Court’s leave to file his witness list out of time. He has not offered the Court any explanation for his lengthy delay. Instead, he has simply filed his Witness List in conjunction with his Exhibit List.1 II. Plaintiff’s Failure To Timely Disclose Is Clear Grounds For Striking Witness List and Excluding Testimony At Trial Given Plaintiff’s clear dilatory inaction, the Court should strike Plaintiff’s late witness list and exclude any individual (other than Plaintiff) from being presented as Plaintiff’s witnesses at trial. Plaintiff’s failure to timely disclose any trial witnesses is certainly grounds for striking his witness list. Pursuant to Fed. R. Civ. P. Rule 26(a)(3)(A): In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence it may present at trial other than solely for impeachment: (i) the name and, if not previously provided, the address and telephone number of each witness – separately identifying those the party expects to present and those it may call if the need arises. Further, Rule 26(a)(3)(B) expressly states, “Unless the court orders otherwise, these disclosures must be made at least 30 days before trial.” Here, this Court did in fact order otherwise, as it clearly set forth a December 11, 2018 deadline for the parties to submit their witness lists. 1 Whereas trial witness lists were due on December 11, 2018, each parties’ exhibits lists were due on March 25, 2019. Case 3:17-cv-00360-HSM-HBG Document 40 Filed 03/28/19 Page 2 of 5 PageID #: 574 3 Defendant followed this Order. (See, Doc 24). Plaintiff did not. 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 trial, unless the failure was substantially justified or harmless. Fed. R. Civ. P. 37 (c)(1). “The exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless.” Dickenson v. Cardiac and Thoracic Surgery of E. Tenn., 388 F.3d 976, 983 (6th Cir. 2004). A. There Is No Substantial Justification for Plaintiff’s Woefully Late Filing Here, Plaintiff has not and cannot offer any justification whatsoever for failing to timely disclose his witness list as the Court ordered. Plaintiff was well aware of his missed deadline the day after it happened. Defendant filed its trial witness list the day it was due, on December 11, 2019. (See Docket No. 24). The following day, Plaintiff’s counsel – apparently prompted by Defendant’s filing – contacted Defendant’s counsel on December 12, 2018 and acknowledged that he had failed to timely file his witness list. (See Declaration of Jonathan Harris, filed as Ex. 1). Plaintiff asked if Defendant would object to Plaintiff filing his witness list one late. Defendant conveyed that it did not object to that timeframe. (See Docket No. 12, ¶ (d)). Defendant did not so object to a filing that was one day late out of professional courtesy. In any event, parties could supplement their witness lists on or before December 16, 2018. In short, Defendant advised Defendant would not object to Plaintiff filing his Witness List on December 12, 2018. Plaintiff’s counsel indicated he would do just that, but never made such a filing until March 25, 2019. (See Harris Decl.). There simply is no reasonable excuse for Plaintiff failing to timely submit Plaintiff’s witness list, nor is there good cause for allowing him to rely on such a late submission at this point. Plaintiff was on notice of the deadline, given: (1) the Court’s clear Scheduling Order; (2) the fact Case 3:17-cv-00360-HSM-HBG Document 40 Filed 03/28/19 Page 3 of 5 PageID #: 575 4 that Defendant filed its pretrial witness list on December 11, 2018; and (3) the conversation of counsel on December 12, 2018. Not only did Plaintiff miss the December 11, 2018, deadline for filing trial witness lists, he failed to promptly correct that oversight after being put on clear notice of that missed filing deadline. The Court’s Scheduling Order states that after five days from December 11, 2018, “the list may be supplemented only with leave of the Court and for good cause.” (Docket No. 12, emphasis added). Plaintiff has not argued that good cause exists for his belated filing, nor can he given the chronology set forth above. B. Defendant Is Prejudiced by Plaintiff’s Failure to Timely File a Witness List Notably, the Scheduling Order requires each party to file a trial witness list before the close of discovery and many months before trial. While pretrial witness lists were due on December 11, 2018, discovery remained open until December 28, 2018. (See Docket No. 12, ¶ (d)). This structure of apprising an adversary and the Court of those witnesses a party clearly intends to call at trial list allows the other party an opportunity to seek discovery or depose witnesses identified therein, if needed. By failing to follow this Court’s Scheduling Order, Plaintiff has denied Defendant that opportunity, which constitutes real harm. Here, the harm is exacerbated by the fact trial is scheduled to start in less than six weeks. Moreover, such a failure to disclose is especially harmful to Defendant, given that nine (9) of Plaintiff’s proposed witnesses are employed by a third party and are not readily available for Defendant to discover their purported relevant knowledge or anticipated testimony. Defendant would be substantially prejudiced if Plaintiff were allowed to disregard the Court’s prior order and rely upon a last minute filing made without a single reason (much less a good one) offered for his delay. III. Conclusion The Court’s Scheduling Order could not be clearer. Five days after the December 11, 2018 Case 3:17-cv-00360-HSM-HBG Document 40 Filed 03/28/19 Page 4 of 5 PageID #: 576 5 deadline for filing a trial witness list, that list “may be supplemented only with leave of the Court and for good cause.” Plaintiff has not even bothered to seek such leave, and no good cause exists for his belated filing. For the foregoing reasons, Leidos respectfully requests an Order striking Plaintiff’s witness list and excluding the testimony of any individual listed therein (other than Plaintiff) at trial. Respectfully submitted on March 28, 2019. /s/ Jonathan O. Harris Jonathan O. Harris, TN #021508 Anne T. McKnight, TN #026476 Thomas W. Whitworth, TN #29581 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 401 Commerce Street, Suite 1200 Nashville, TN 37219-2446 Telephone: 615.254.1900 Facsimile: 615.254.1908 CERTIFICATE OF SERVICE I hereby certify that on March 28, 2019, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system upon the following: Thomas M. Leveille Tarpy, Cox, Fleishman & Leveille, PLLC 1111 N. Northshore Drive Landmark Tower North, Suite N-290 Knoxville, TN 37919 /s/ Jonathan O. Harris 37951419.1 Case 3:17-cv-00360-HSM-HBG Document 40 Filed 03/28/19 Page 5 of 5 PageID #: 577