Summary Judgment — Declarations from Witnesses Not Disclosed Per Rule 26(a)(1) Excluded Pursuant to Rule 37(c)(1)

From Marin v. Evans, 2008 U.S. Dist. LEXIS 61922 (E.D. Wash. July 23, 2008) (a class action):

In response to the Court's invitation to file a sur-reply to Defendants' Motion for Summary Judgment, Plaintiffs filed Declarations from both name-Plaintiffs, as well as Declarations from individuals who were not previously disclosed to Defendants. Defendants moved the Court to strike the Declarations due to the untimely disclosure. Defendants also asserted that the Declarations should be stricken because they contradicted earlier deposition testimony, contained inadmissible hearsay, and lack of foundation. Defendants also argue that Joyce Usher's Declaration is irrelevant. *** Plaintiffs are not disputing that they had not previously disclosed Javier Borges, Cirilo Marin, or Joyce Usher as individuals with discoverable information and with whom Plaintiffs would be relying upon to prove their case. Plaintiffs maintain, however, that they did not violate Fed. R. Civ. P. 26 because they disclosed these witnesses within days of determining that they would use their testimony. The Court disagrees with Plaintiffs' interpretation of what is required under the Rules of Civil Procedure....

At the hearing, Plaintiffs' counsel indicated to the Court that Plaintiffs had evidence that would demonstrate that co-conspirators or co-Defendants had actual knowledge that an individual was unauthorized and had entered the country illegally. At the time of the hearing then, Plaintiffs' counsel knew that these individuals had discoverable information. Presumably, Plaintiffs counsel had contacted these individuals at some point prior to this hearing, yet never disclosed these individuals to Plaintiff. Since Plaintiffs are relying on these persons to prove the elements of their claims, it is inconceivable that these individuals would not need to be disclosed under Fed. R. Civ. P. 26. It is not unfair or unreasonable to expect Plaintiffs to prepare to prove the essential elements of the claim at trial, and to identify the witnesses they needed for that purpose on a timely basis, regardless of whether Defendants challenged the sufficiency of the proof of the elements in motions for summary judgment. See Wong v. Regents of the Univ. Of Calif., 410 F.3d 1052 (9th Cir. 2005).

Alternatively, if it is true, as Plaintiffs explained in their briefing, that Plaintiffs did not identify that these individuals had discoverable information until after the February 26, 2008, hearing, then Plaintiffs were not being forthright with the Court. It is significant to note that Plaintiffs did not ask for more time to discover evidence to oppose Defendant's Motion for Summary Judgment. Rather, the Plaintiffs represented that they had already developed such information but did not file it because they did not think it necessary.

Held, “the Court will not consider the Declarations of Javier Borges, Cirilio Marin and Joyce Usher in opposition to Defendant William Evans' Motion for Summary Judgment.”

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