United States District Court, D. Arizona
JAMES A. TEILBORG, District Judge.
At the final pretrial conference held on June 25, 2014, the United States raised objections to certain of Plaintiffs' lay witnesses listed in the proposed final pretrial order. Specifically, the United States objected to certain proposed topics of testimony for six of Plaintiffs' witnesses on the grounds that the subjects of their testimony had not been timely disclosed: Arimoto, Ishida, Kobuna, Taniuchi, Mukaitani, and Fujikawa. Although Plaintiffs correctly classify the United States' objection as an oral motion in limine disallowed by this Court's prior order (Doc. 634 at 2), motions in limine can be particularly useful in determining the admissibility of a witness' testimony, and the Court makes a one-time exception to its prior order for the limited purpose of ruling on the admissibility of these witnesses' testimony.
The Court has considered the Plaintiffs' memorandum filed in response to the United States' objections (Doc. 659) as well as the United States' responsive memorandum (Doc. 660), and rules as follows.
The United States originally objected to five topics of testimony by the lay witnesses, numbered 2, 4, 6, 7, and 8 and corresponding with the subjects of testimony numbered as such in the parties' proposed final pretrial order. Plaintiffs have since withdrawn topic 8 as a subject of testimony by the lay witnesses. (Doc. 660 at 2). The remaining topics, 2, 4, 6, and 7, are: "(2) information communicated to [the witness] by Rick Toma or any other FLPJ employee regarding the TRTB audit of FLPJ prior to the October 1997 media reports;... (4) [the witness's] knowledge of the information in the October 1997 media reports;... (6) was the witness the source of any of the media reports or was [the witness] aware of anyone in the company who was the source of the media reports; and... (7) [the witness's] lay opinion regarding the source of the media articles and the meaning in Japanese society of the word "kankeisha" in a media story regarding tax issues based on [the witness's] personal observation, prior experience, giving the basis for [the witness's] belief and the societal context for [the witness's] belief." (Doc. 656 at 103-06). See also (Doc. 669 at 102-05) (final pretrial order as adopted by the Court).
II. Legal Standard
A. Rule 26(a)
Federal Rule of Civil Procedure ("Rule") 26(a)(1)(A)(i) requires a party to disclose not only the identities of witnesses who are "likely to have discoverable information" but also the "subjects of that information." A party must supplement its disclosures in a timely manner "if the party learns that in some material respect the disclosure or response is incomplete or correct, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(1)(A).
B. Untimely Disclosure
When a party fails to make a timely disclosure required by Rule 26(a), "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 it proves that its failure was "substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1); Torres v. Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008).
The Ninth Circuit Court of Appeals ("Court of Appeals") has enumerated four factors in determining "whether a violation of a discovery deadline is justified or harmless:... (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence." Lanard Toys Ltd. v. Novelty, Inc., 375 F.Appx. 705, 713 (9th Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
If a court concludes that a discovery deadline violation is not substantially justified or harmless, it has "particularly wide latitude" in its discretion to "issue sanctions under Rule 37(c)(1)." Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Rule 37(c) is intended to provide a "self-executing, " "automatic sanction provid[ing] a strong inducement for disclosure of material, " Fed.R.Civ.P. 37 advisory committee's note (1993). Thus, the rule provides for the automatic exclusion of the testimony of an untimely disclosed expert witness. See Fed.R.Civ.P. 37(c)(1); Yeti by Molly, 259 F.3d at 1106 (citing Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir. 2001)).