United States District Court, D. Utah
THORNE RESEARCH, INC. and SOFTGEL FORMULATORS, INC., Plaintiffs,
MEMORANDUM DECISION AND ORDER GRANTING
PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE UNTIMELY
matter is before the Court on Plaintiffs' Motion In
Limine to Exclude Untimely Disclosed Witnesses. For the
following reasons, the Court grants the Motion.
January 21, 2018, two years after the close of discovery,
Xymogen identified four witnesses for the first time-Kyra
Roberts, Andres Gomez, Mark Ireland, and Robert Hawkins- as
“may call” witnesses at trial. Xymogen did not
disclose those individuals in its Initial Pretrial
Disclosures or in response to Plaintiffs'
interrogatories. Plaintiffs have now filed this Motion to
exclude those witnesses pursuant to Federal Rule of Civil
Procedure 37(c)(1). In response, Defendant states that it
will not call Ms. Roberts, Mr. Gomez, and Mr. Ireland, but
requests the Court deny the Motion with respect to Mr.
STANDARD OF REVIEW
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.” “A district
court need not make explicit findings concerning the
existence of a substantial justification or the harmlessness
of a failure to disclose.” However, in exercising its
discretion, the Court considers the following factors:
“(1) the prejudice or surprise to the party against
whom the testimony is offered; (2) the ability of the party
to cure the prejudice; (3) the extent to which introducing
such testimony would disrupt the trial; and (4) the moving
party's bad faith or willfulness.”
does not appear to be any dispute that Defendant violated its
discovery obligations under Rule 26. Therefore, the Court
must consider whether that failure was “substantially
justified or is harmless” under the factors set forth
in Woodworker's Supply. Considering these
factors, the Court concludes that Defendant's failure was
not substantially justified or harmless.
there can be no question that the late disclosure of Mr.
Hawkins came as a surprise to Plaintiffs and will be
prejudicial. Plaintiffs state that they do not know Mr.
Hawkins, are unaware of the content of his proposed
testimony, and have not had the opportunity to depose him.
Defendant argues that Plaintiffs will not be prejudiced
because Mr. Hawkins' testimony merely corroborates its
claim that Mr. Rumolo was the true inventor. However, the
fact that Plaintiffs know of Defendant's claim is not the
same as knowing what a particular witness will testify to
concerning that claim.
the prejudice cannot be cured without disrupting trial. While
Defendant offered to make Mr. Hawkins available for
deposition, it did so just days before trial when all parties
are heavily engaged in trial preparations.
the Court finds that allowing Mr. Hawkins to testify would
disrupt trial. The parties are surely engaged in extensive
trial preparations. Requiring Plaintiffs to take time away
from those preparations to depose Mr. Hawkins would disrupt
counsel's efforts and would reward Defendant for its
dilatory conduct. Moreover, this trial is tightly scheduled.
Thus, allowing for additional witnesses will likely interfere
with the schedule of the parties, witnesses, the Court and,
most importantly, the jury.
the Court finds no bad faith or willfulness on the part of
Defendant. However, “good faith alone would not be
enough to overcome the other factors.” While the Court
finds no bad faith or willfulness, the evidence submitted
shows that Defendant was made aware of Mr. Hawkins and his
role as Mr. Rumolo's assistant in 2014. This knowledge
shows a lack of diligence on the part of Defendant. Defendant
states that it did not learn of the importance of Mr.
Hawkins' proposed testimony until discussions with Mr.
Rumolo on December 12, 2017. However, there is no evidence
that Defendant ever attempted to obtain this information
previously. As a result, the Court finds that Defendant's
failure is not substantially justified or harmless and will
exclude Mr. Hawkins as a witness.