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Esparza v. Regent Insurance Co.

United States District Court, D. Kansas

July 9, 2019

STEPHANIE L. ESPARZA, Plaintiff,
v.
REGENT INSURANCE COMPANY, Intervenor.

          MEMORANDUM AND ORDER

          THE HONORABLE J. THOMAS MARTEN UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the court on two motions filed by Intervenor Regent Insurance Company (Regent) pertaining to certain witness and exhibit disclosures: (1) a motion to strike witness Vanessa Jaques and Exhibits I, J, K, and N from Esparza's Rule 26(a)(3) Witness and Exhibit List (Dkt. 92); and (2) a motion to quash Esparza's trial subpoena to Vanessa Jaques (Dkt. 95). Regent contends that Esparza should be barred from presenting either the witness or aforementioned exhibits because she failed to identify them as such in her Rule 26(a)(1) initial disclosures or a timely supplement to those disclosures. Esparza argues that the identity of the witness and the exhibits identified by Regent were not available at the time of the initial disclosures, and that no supplement was required under Rule 26(e) because Regent was made aware of the relevant information during the course of discovery. After its review of the briefs and disclosures in this matter the court concludes that there was no violation of Rule 26 that would implicate sanctions under Rule 37, and that even if Esparza's disclosures had violated Rule 26 the failure to disclose was harmless.

         A. Legal Standard.

         In this case, the court entered a revised scheduling order after ruling on the parties' summary judgment motions. The pertinent portion of that order acknowledged that the parties had already exchanged initial disclosures as required by Fed.R.Civ.P. 26(a)(1), but directed that “[s]upplementations of those disclosures under Fed.R.Civ.P. 26(e) must be served at such time and under such circumstances as required by that rule.” (emphasis added). The Scheduling Order then advised “[s]hould anything be included in the final [pretrial] disclosures under Fed.R.Civ.P. 26(a)(3) that has not previously appeared in the initial Rule 26(a)(1) disclosures or a timely Rule 26(e) supplement thereto, the witness or exhibit probably will be excluded from offering any testimony under Fed.R.Civ.P. 37(c)(1).” (emphasis added).

         Rule 26(a)(1)(E) requires that a party “make its initial disclosures based on the information then reasonably available to it, ” but must supplement the disclosure “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” “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. 37(c)(1).

         “A district court has discretion to decide whether a Rule 26 violation is justified or harmless and, when doing so, should consider 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.'” Little v. Budd Co., 339 F.Supp.3d 1202, 1207 (D. Kan. 2018) (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002)).

         B. Analysis.

         1. Disclosure of Vanessa P. Jaques as a Trial Witness

         It is true that Esparza failed to disclose Jaques as a witness in her Rule 26(a)(1) initial disclosures. The court finds that irrelevant, as Esparza learned of Jaques' role in the case a year after her initial disclosures were served. It appears that Esparza first learned of Jaques when she received an email from Jaques on September 17, 2018, informing her that K.C. Bell (her former employer) could not accommodate her at any position due to Esparza's final medical restrictions. Esparza's Second Supplemental Response to Regent's First Request for Production was served on Regent's counsel two days later, on September 19, 2018, identifying “email received by Plaintiff from K.C. Bell's Director of Human Resources, Vanessa Jaques on September 17, 2018” as responsive to a request for written material containing information pertaining to the incident alleged and the alleged damages or injuries. (Dkt. 97-2). Regent was at least aware of Jaques' identity and relevance to the case, then, in mid-September 2018.

         Regent nevertheless contends that Esparza was still obligated to file a Rule 26(e) supplement listing Esparza specifically as a “trial witness.” Regent's insistence that Esparza failed to identify Jaques as a trial witness prior to her Rule 26(a)(3) pretrial disclosures reads requirements into the rules that do not exist. Rule 26(a)(1) states that a party shall provide “the name … address and telephone number of each individual likely to have discoverable information … the disclosing party may use to support its claims or defenses ….” A party is then required to supplement under Rule 26(e)(1)(A) only if “the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” (emphasis added). Neither of these rules require a disclosing party to distinguish among those individuals “likely to have discoverable information” and those individuals who the party intends to call as trial witnesses. Esparza disclosed Jaques' identity and pertinent contact information promptly and in writing, which is all that Rules 26(a) and 26(e) required her to do. See Pina v. Children's Place, 740 F.3d 785, 793 (1st Cir. 2014) (finding disclosure of a witness's identity and role in a verified position statement to the Massachusetts Commission against Discrimination sufficient to meet Rule 26(e)'s exception to the supplementation rule).

         In contrast, Rule 26(a)(3)(A) provides that in addition to the disclosures required by Rules 26(a)(1) and (2),

a party must provide to the other parties and promptly file the following information about the evidence that 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; …
(iii) an identification of each document or other exhibit … separately identifying those items the party expects to offer and ...

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