UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
DENISE A. BANKS, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1807 (RWR)
)
TOM VILSACK, )
)
Defendant. )
_____________________________ )
MEMORANDUM ORDER
Plaintiff Denise A. Banks filed a five-count amended
complaint against the Secretary of the United States Department
of Agriculture (“USDA”) alleging that she was discriminated and
retaliated against on the basis of race, sex, and age on a number
of occasions. In anticipation of trial, the parties filed on
May 28, 2013 their pretrial materials, including their schedules
of witnesses to be called and their lists of exhibits to be
offered at trial. Later, on the eve of trial, Banks filed a
motion to amend her complaint to include only her claims that she
was discriminated against on the basis of race and sex when she
was removed from the Senior Executive Service (“SES”) in 2000.
She also moved in limine to preclude the USDA from calling a
number of witnesses and introducing certain exhibits at trial
arguing that the evidence was not relevant to her remaining
claims. On June 17, 2013, Banks’s motion to amend her complaint
was granted and the trial was reset for August 13, 2013. A
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July 31, 2013 Memorandum Opinion and Order granted in part and
denied in part Banks’s motion in limine and precluded the USDA
from introducing several witnesses and introducing certain
exhibits at trial.
On August 5, 2013, the USDA filed a revised pretrial
statement “to apprise the Court of its intended presentation at
trial to reflect the narrower issues now set to be tried in
accordance with the rulings of the Court at the pretrial
conference held on June 10, 2013,” Def.’s Revised Pretrial Stmt.
at 1-2,
the Court’s Memorandum Opinion and Order of July 31,
2013, and the Court’s order granting Plaintiff’s
request to limit a trial in this action to her claim
that USDA discriminated against her based on her race
and gender when it removed her from the Senior
Executive Service in early-2000 and assigned her to a
GS-15 position[.]
Def.’s Notice of Future Filing. The USDA’s revised pretrial
statement includes two witnesses -- Charles Rawls and Gail Booker
Jones -- and eight exhibits not included in its May 28 pretrial
materials.
Banks moves to strike the revised pretrial statement arguing
that the statement is untimely and that the USDA should be
precluded from calling the new witnesses and introducing the new
exhibits. The USDA opposes.
Federal Rule of Civil Procedure 26(a)(3) requires that a
party make certain pretrial disclosures to other parties
including “the name and, if not previously provided, the address
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and telephone number of each witness -- separately identifying
those the party expects to present and those it may call if the
need arises” and “an identification of each document or other
exhibit, including summaries of other evidence -- separately
identifying those items the party expects to offer and those it
may offer if the need arises.” Fed. R. Civ. P. 26(a)(3)(A).1 A
party must make these mandatory disclosures “at least 30 days
before trial” “[u]nless the court orders otherwise.” Fed. R.
Civ. P. 26(a)(3)(B).
“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 . . . at a trial,
unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c). Thus, “[t]his restriction . . . would not
bar an unlisted witness if the need for such testimony is based
upon developments during trial that could not reasonably have
been anticipated -- e.g., a change of testimony.” Fed. R. Civ.
P. 26 Advisory Committee’s notes. Similarly, “the court can
permit use of unlisted documents the need for which could not
reasonably have been anticipated in advance of trial.” Id.
“Rule 37(c)(1) is a self-executing sanction[.]” Norden v.
Samper, 544 F. Supp. 2d 43, 49 (D.D.C. 2008) (internal quotation
1
Similarly, Local Civil Rule 16.5 requires parties to
submit a pretrial statement, which includes “a schedule of
witnesses to be called by the party” and “a list of exhibits to
be offered in evidence by the party.” LCvR 16.5(b)(1).
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marks omitted). “[T]he burden of showing substantial
justification and special circumstances is on the party being
sanctioned.” Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir.
1994); see also Elion v. Jackson, 544 F. Supp. 2d 1, 6 (D.D.C.
2008).
Here, it is undisputed that the USDA did not disclose Rawls
and Jones and the eight new exhibits in their May 28 pretrial
disclosures. Thus, the USDA must show that its omissions were
substantially justified or are harmless.
The USDA has not shown that its failure to identify Rawls
and Jones as potential witnesses or to list its new exhibits in
its May 28 pretrial statement was substantially justified. The
USDA asserts that it revised its pretrial statement because Banks
decided to limit her case to her claim that the USDA
discriminated against her by terminating her from the SES and
because the July 31 order limited the evidence the USDA can
present at trial. However, the USDA has not shown that Banks’s
narrowed complaint injected any new and unanticipated subject
matter in this case or that some other unforeseeable development,
such as factually changed testimony, substantially justifies the
USDA’s failure to previously disclose its new evidence. Thus,
the USDA has not shown that its omission in its May 28 pretrial
materials was substantially justified.
Likewise, the USDA has not demonstrated that its failure to
identify previously the witnesses and exhibits is harmless. The
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USDA contends that Rawls and Jones were named in the
administrative record to which the USDA referred in response to
Banks’s interrogatory seeking the names of every person with
knowledge of the issues raised in the complaint, and that its new
proposed exhibits were taken from that administrative record.
Def.’s Opp’n to Pl.’s Mot. to Strike Def.’s Revised Pretrial
Stmt. (“Def.’s Opp’n”) at 6-7. That did not relieve the USDA of
its obligation to specifically identify these potential witnesses
and exhibits in its May 28 filing, and the USDA has not shown
that identifying this evidence days before trial will not harm
Banks by not allowing her sufficient time to prepare to meet
these new exhibits and this new testimony at trial. See United
States ex rel. Purcell v. MWI Corp., 520 F. Supp. 2d 158, 168
(D.D.C. 2007).2
Because Rule 37(c)(1) bars the newly listed witnesses and
exhibits, it is hereby
ORDERED that Banks’s motion [92] in strike be, and hereby
is, GRANTED IN PART and DENIED IN PART. Testimony from Rawls and
Jones and Defendant’s Exhibits 70-77 are precluded. Banks’s
motion is otherwise denied.
2
Banks also moves to strike the USDA’s new proposed jury
instruction. However, as Federal Rule of Civil Procedure
26(a)(3) does not require the parties to disclose their proposed
jury instructions, Rule 37(c)(1) does not bar undisclosed
proposed jury instructions. Banks has not otherwise shown that
the instruction should be barred, and her request will be denied.
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SIGNED this 8th day of August, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge