United States District Court, M.D. Louisiana
SHELLY D. DICK, District Judge.
Before the Court is the Defendant's Motion to Exclude Late-Disclosed Witness Testimony.  The Motion is opposed by the Plaintiff, Governor Bobby Jindal. This matter is set for hearing on the Plaintiff's Motion for Preliminary Injunction  on May 28, 2015. The Court's Scheduling Order provides "Discovery due by 5/8/2015". On May 8th, the last day of the discovery period, the Plaintiff identified a "fact" witness, Ms. Shawna Dufrene, whom he intends to call at the preliminary injunction hearing.
Defendants move, pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure, to exclude the testimony of Ms. Dufrene at the May 28, 2015 preliminary injunction hearing. Defendants argue that,
Plaintiff waited until 5:22 p.m. on May 8, 2015, the last day of discovery prior to the evidentiary hearing on his motion for preliminary injunction, to disclose the identity of a witness whom he intends to call to testify at that hearing. The timing of the disclosure made it impossible for Defendants to depose or otherwise seek discovery concerning the witness during the discovery period, and the disclosure is thus untimely.
The Plaintiff counters that the disclosure of the witness on the last day of the discovery period was timely and, thus, FRCP Rule 37(c)(1) is not implicated and, furthermore, because the witness is available for deposition before the hearing, the Defendants are not prejudiced.
Simply stated, Governor Jindal seeks injunctive relief from what is colloquially known as "Common Core". The hearing on the Governor's Petition for Injunction is scheduled on May 28, 2015. On the last day that "discovery [was] due", Jindal supplemented his Rule 26 disclosures to name a previously undisclosed fact witness, Ms. Dufrene, whom he intends to call at the hearing.
II. LAW AND ANALYSIS
A. The Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure require parties to disclose witnesses and documents that they may offer at trials or hearing early in the proceedings. Parties are required to continually supplement their initial disclosures "in a timely manner." Pursuant to Rule 37(c)(1), "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."
Defendants maintain that the Plaintiff's 11th hour disclosure of a previously unknown fact witness was untimely. Citing a case from the District Court of the Virgin Islands, Defendants argue that:
Identifying new witnesses for the first time on the last day of the period for deposing such witnesses is not timely for the purposes of Rule 26(e) because it deprives the disclosing party's adversary of the opportunity to use the discovery process to learn what testimony the named witnesses might give.
The Court finds the case relied upon by the Defendants factually distinguishable. In the Century Aluminum case the plaintiffs supplemented their initial disclosures on the last day of the discovery period identifying 118 new witnesses. In evaluating the final hour disclosure, the Virgin Islands District Court concluded that exclusion was required due to prejudice, because the opponent of the evidence had insufficient time to depose the newly identified witnesses.
The Federal Rules of Procedure require timely disclosure of witnesses. On April 2, 2015, the Magistrate Judge assigned to this case ordered that "Discovery was due by May 8, 2015". The question presented is whether the disclosure of a witness ...