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Bubar v. Nordx

United States District Court, D. Maine

April 8, 2017

ANNE-MARIE BUBAR, Plaintiff
v.
NORDX, Defendant

          MEMORANDUM DECISION AND ORDER ON DEFENDANT'S MOTION IN LIMINE TO EXCLUDE TESTIMONY BY OR ABOUT JASON COOK

          John H. Rich III United States Magistrate Judge

         Defendant NorDx moves in limine to exclude testimony by or about former NorDx employee Jason Cook on the bases that plaintiff Anne-Marie Bubar failed to disclose her intent to call him as a witness until March 29, 2017, and that the evidence constitutes inadmissible character evidence and is unfairly prejudicial. See Defendant's Motion in Limine To [Exclude] Testimony by or about Jason Cook (“Motion”) (ECF No. 64) at 1. I agree that the disclosure is untimely and that the allowance of the Cook testimony would be prejudicial and grant the Motion on that basis.

         I. Discussion

         The plaintiff does not deny that she first disclosed Cook as a witness in a trial witness list filed on March 29, 2017. See Plaintiff's Opposition to Defendant's Motion in Limine To Exclude Testimony by or about Jason Cook (“Opposition”) (ECF No. 66) at 2-4. However, she contends that the defendant is responsible for the lateness of the Cook witness disclosure and, in any event, would suffer no prejudice were the Cook testimony allowed. See id. Neither argument is persuasive.

         With respect to timeliness, the plaintiff contends that the defendant refused to permit inquiry about Cook or to supplement its discovery responses, preventing her from disclosing Cook sooner. See id. at 2-3. She points to objections that the defendant interposed to (i) an interrogatory on September 12, 2016, and (ii) a line of questioning at its Rule 30(b)(6) deposition on January 6, 2017. See id.

         In the interrogatory at issue, the plaintiff asked the defendant to state whether it or any of its agents had “been a party to or in any way involved in another employment-related allegation, investigation, claim or lawsuit before a court or administrative body . . . in the past ten years, and for each such claim or lawsuit, state the subject matter involved, the caption and/or docket number, and how the claim was resolved.” Exh. A (ECF No. 66-1) to Opposition at 12-13, ¶ 21. The defendant did not answer, but rather interposed this objection:

Defendant objects to this interrogatory as overly broad, unduly burdensome, as seeking information that is neither relevant nor likely to lead to the discovery of admissible evidence, and as seeking private and confidential information of third persons who are not parties to this matter. Defendant further objects to this interrogatory as vague in that the terms “in any way involved” and “allegation…claim” are not defined or capable of interpretation leading to an appropriate or complete response, and because this interrogatory seeks information that may be deemed confidential by law, by administrative regulation and/or by contract.

Id. at 13, ¶ 21.

         The plaintiff states that, “[r]ather than waste the Court's time with a discovery conference to compel an answer to this interrogatory, [she] undertook depositions.” Opposition at 2. During the defendant's Rule 30(b)(6) deposition, the defendant's corporate designee, Rachel Roy, testified that she thought there had been two claims in the past 10 years, one of which was brought by Jason Cook. See Exh. B (ECF No. 66-2) to Opposition at 29-30. The plaintiff's counsel inquired as to the nature and timing of Cook's claim, and Roy testified that it was a discrimination claim brought in 2013 or 2014. See id. at 30. The defendant's counsel then objected that she believed the Cook claim was the subject of “a pending Commission claim; so we would be bound by the confidentiality order of the Commission not to discuss the case outside of the Commission's process.” Id. The plaintiff's counsel responded, “That's fine. We can get that later.” Id. at 31.

         The plaintiff now argues that, pursuant to Federal Rule of Civil Procedure 26(e), the defendant “was required to supplement or correct this information about the confidentiality of Mr. Cook's pending claim ‘in a timely manner'” and “should not be permitted to now benefit from that failure to supplement discovery responses.” Opposition at 3. However, Rule 26(e) is inapposite.

         Rule 26(e) requires supplementation or correction of an initial disclosure or a response to an interrogatory, request for production, or request for admission “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, 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) (emphasis added).

         Rule 26(e), on its face, does not pertain to depositions. While it does pertain to interrogatory responses, the information that the plaintiff contends should have been supplemented or corrected took the form not of a “response” but of an objection by counsel. In any event, the plaintiff eventually did learn the information that she contends the defendant should have provided, although she does not indicate how or when, seemingly obviating the need for supplementation or correction pursuant to the rule. See Opposition at 3. Moreover, even if the defendant had a duty pursuant to Rule 26(e) to supplement its objection, it is difficult to see how the duty would have been triggered. The objection stated, in relevant part, that the interrogatory sought “private and confidential information of third persons who are not parties to this matter” and “information that may be deemed confidential by law, by administrative regulation and/or by contract[, ]” Exh. A at 13, ¶ 21, all of which could have remained the case even after the Commission closed the Cook claim.

         The plaintiff chose not to bring the matter to the court's attention, either following the defendant's September 2016 objection to her interrogatory or its January 2017 objection to her line of questioning regarding Cook, when it could have been addressed well before trial and possibly even before the close of discovery on January 20, 2017. See ECF No. 17. Nor did she list Cook as a potential witness in her final pretrial memorandum filed on February 9, 2017, see ECF No. 27 at 4, or raise the matter during the parties' final pretrial conference on February 16, 2017, see generally ECF No. 29. Instead, she listed Cook as a witness for the first time in her March 29, 2017, trial witness list, see ECF No. 50. The defendant's counsel then promptly raised the issue during my conference with counsel on an unrelated trial matter on March 31, 2017, leading to the filing of the instant Motion. In these circumstances, the tardiness of the Cook witness disclosure cannot be laid at the defendant's feet.

         Nor does the plaintiff persuasively argue that there is no prejudice to the defendant. The defendant argues that it was not placed on notice that the Cook evidence might be at issue in this case within a reasonable time in advance of trial to respond to and defend against that evidence, see Motion at 1-2, indicating that it would need to call Cook's supervisors (who ...


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