Trial practice is an art of managing your discovery, knowing your calendar deadlines and pulling part your opponent\u2019s case by striking their key exhibits with motions in limine.\u00a0<\/p>\n

The following motions from Debose v. Broward Health <\/em>to exclude two of the Plaintiffs’ witnesses and late disclosed Defense\u00a0email messages\u00a0sounds like the Battle of the Somme: Everyone lost.\u00a0<\/p>\n

Procedural History: Into the Quagmire <\/strong><\/p>\n

The Defendant\u2019s initial disclosures did not include 254 emails between the Plaintiffs and their supervisors.\u00a0 The Plaintiffs moved to exclude these emails from the trial. Debose v. Broward Health,<\/em> 2009 U.S. Dist. LEXIS 45546, 7-8 (S.D. Fla. May 20, 2009).<\/p>\n

The Defendant\u2019s claimed that the emails related to the issue of unpaid hours for meal breaks, which they claimed were not raised until the Plaintiffs\u2019 depositions a month before the hearing.\u00a0 Debose,<\/em> 5.\u00a0<\/p>\n

The Defendant\u2019s brought a motion to exclude the Plaintiffs\u2019 late disclosed witnesses.\u00a0<\/p>\n

Initial Disclosures<\/strong><\/p>\n

Initial Disclosures are mandated by Federal Rule of Civil Procedure Rule 26.\u00a0 They are made without any sort of request. The initial disclosures must include the name and contact information of any individual \u201clikely to have discoverable information\u201d that can support a claim or defense.\u00a0 Debose,<\/em> 11-12.<\/p>\n

The Rule has one big exception: if the documents or ESI is being used for impeachment, it does not need to be in the initial disclosures. \u00a0Debose,<\/em> 12.<\/p>\n

Federal Rule of Civil Procedure Rule 37 empowers a court to strike all or part of a pleading if a party fails to meet their discovery obligations.\u00a0 Debose,<\/em> 12. A court engages in the following three part analysis in deciding to sanction a party by excluding an untimely disclosed witness\u2019 testimony:<\/p>\n

(1) The importance of the testimony;<\/p>\n

(2) The reason for the failure to disclose the witness earlier; and \u00a0<\/p>\n

(3) The prejudice to the opposing party if the witness had been allowed to testify. Debose,<\/em> 12-13.<\/p>\n

Into the Storm: Applying the Law to the Facts<\/strong><\/p>\n

The Court held the Defendants were on notice back in December 2008 that Plaintiffs\u2019 claims included lunch\/meal break payments.\u00a0 The Court also found the argument the Defendants learned of \u201cnew claims\u201d during the Plaintiffs\u2019 deposition to be without merit.\u00a0 Debose,<\/em> 13-14.<\/p>\n

The Defendants should have included the email messages in their initial disclosures.\u00a0 Since the emails were not disclosed, the Defendants were barred from using the email messages to support their defenses.\u00a0 Debose,<\/em> 14.\u00a0<\/p>\n

\u00a0<\/p>\n

Impeaching the Plaintiffs was a different story.\u00a0 Federal Rule of Civil Procedure Rule 26 does not require disclosure of documents or ESI that will only be used for impeachment.\u00a0 Debose,<\/em> 15.\u00a0<\/p>\n

People in Glass Houses: The Plaintiffs\u2019 Late Disclosed Witnesses<\/strong><\/p>\n

The Plaintiffs had their own procedural problems with two late disclosed witnesses lacking any sort of valid reason.\u00a0 Debose,<\/em> 15-16.\u00a0 Compounding the issue, the Court noted the new witnesses\u2019 testimony appeared cumulative of the other 40 disclosed witnesses.\u00a0 Debose,<\/em> 16.<\/p>\n

Given the three part test of 1) testimonial importance 2) valid reason for late disclosure and 3) Prejudicial effect on the Defendant with allowing the testimony, the Court excluded the witnesses from testifying.\u00a0<\/p>\n

Leveraging the Rules of Civil Procedure<\/strong><\/p>\n

Lawyers are well suited to follow the disclosure requirements mandated by the Federal (or their state) Rules of Civil Procedure.\u00a0\u00a0<\/p>\n

Not doing so can result in key exhibits or witnesses being eliminated from your case in chief.<\/p>\n","protected":false},"excerpt":{"rendered":"

Trial practice is an art of managing your discovery, knowing your calendar deadlines and pulling part your opponent\u2019s case by striking their key exhibits with motions in limine.\u00a0 The following motions from Debose v. Broward Health to exclude two of the Plaintiffs’ witnesses and late disclosed Defense\u00a0email messages\u00a0sounds like the[…]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false},"version":2}},"categories":[35,44,45,46,70,77],"tags":[163],"class_list":["post-1076","post","type-post","status-publish","format-standard","hentry","category-discovery","category-electronically-stored-information","category-email","category-esi","category-initial-disclosures","category-late-witness-disclosure","tag-e-discovery"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7kqH7-hm","jetpack-related-posts":[],"jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/posts\/1076","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/comments?post=1076"}],"version-history":[{"count":0,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/posts\/1076\/revisions"}],"wp:attachment":[{"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/media?parent=1076"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/categories?post=1076"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/tags?post=1076"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}