Rule 26(a) vs. Rule 26(b) — Witness First Identified in Pretrial Order Barred from Testifying at Trial

The defendant in Elion v. Jackson, 2008 U.S. Dist. LEXIS 27520 (D.D.C. April 7, 2008), sought to exclude from trial the testimony of a witness (Higgins) whose identity was first disclosed in the Joint Pretrial Statement, just two weeks before the originally scheduled trial date and well after discovery had closed. The plaintiff argued that the testimony of the witness was to be offered solely for impeachment purposes, and thus Rule 26(a)(1) excused identification of the witness from the mandatory initial disclosures (and from supplementation of those disclosures pursuant to Rule 26(e)). District Judge Paul L. Friedman found that the planned use of the testimony exceeded impeachment purposes but, more interestingly, stressed that even impeachment witnesses must be disclosed in response to discovery demands requesting that knowledgeable witnesses be identified.

[E]ven assuming that Ms. Higgins' testimony were offered solely for impeachment purposes and therefore was not disclosable under Rule 26(a), the defendant would still be in violation of Rule 26[b].... Rule 26(b), which governs formal discovery — unlike Rule 26(a) — does not include an exception for witnesses whose testimony would be "solely for impeachment." FED. R. CIV. P. 26(a)(1)(A)(i), 26(a)(3)(A). As a leading treatise explains:

The initial disclosure requirements exclude items that the disclosing party may use "solely for impeachment," but no such limitation applies to material sought through discovery. . . . The fact that the party responding to discovery intends to use the material only for impeachment does not take it out of the realm of discoverable material if it is otherwise relevant.

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2011 at 96 (2007 Supp.). See also Newsome v. Penske, 437 F. Supp. 2d at 437 ("No special status is given to impeachment evidence under Rule 26(b)(1)."). Rule 26(b) thus imposed a duty on defendant to disclose Ms. Higgins' identity in response to plaintiff's Interrogatory Number 1(c), even if her testimony was intended to be used solely for impeachment. 7 If Ms. Higgins' identity or relevance were not known to defendant at the time it responded to the interrogatory, Rule 26(e) imposed a duty to disclose her identity as soon as it became known to defendant or as soon as defendant understood that Ms. Higgins' identity fell within the scope of plaintiff's interrogatory. See FED. R. CIV. P. 26(e). And Rule 37(c) now requires the imposition of a sanction for defendant's violation of Rule 26(e).

Held, testimony excluded.

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