301 F.R.D. 391
E.D. Mo.2014Background
- Underwriters (Lloyd’s syndicates) insured SSDD’s commercial property; dispute over coverage and factual issues led to declaratory judgment action.
- Discovery closed January 21, 2014; trial set for July 21, 2014.
- On June 3, 2014 (four+ months after discovery closed), Underwriters supplemented interrogatory responses to identify two new trial witnesses: Andrew Fowles and Anthony (Tony) Milo.
- Fowles’ January 29, 2014 declaration had already been filed in opposition to SSDD’s summary judgment motion; Milo was identified as having prepared the hail-inspection report (Madsen, Kneppers & Associates).
- SSDD moved to exclude both witnesses under Fed. R. Civ. P. 26(e) and 37(c)(1) as untimely and prejudicial; Underwriters argued supplementation was not required or was harmless/substantially justified.
- The court denied Underwriters’ defenses, concluding disclosures were untimely, neither substantially justified nor harmless, and exclusion was warranted given prejudice and disruption so close to trial.
Issues
| Issue | Plaintiff's Argument (Underwriters) | Defendant's Argument (SSDD) | Held |
|---|---|---|---|
| Whether Underwriters violated Rule 26 by failing to disclose Fowles and Milo before discovery closed | No duty to disclose: Fowles was revealed in Jan. declaration and became a witness only after SSDD raised an "imputation" defense; Milo is a replacement for previously disclosed Gunvaldsen | Failure to disclose was untimely, prejudicial, prevented depositions/subpoenas, and was concealment to avoid discovery | Court: Failure to disclose violated Rules 26(a)/(e); exclusion warranted |
| Whether non-disclosure was "substantially justified" | Delay justified: Fowles only became necessary after late defense; Milo only identified when Gunvaldsen left MKA | Underwriters knew of Fowles in Jan. and could have supplemented; Milo and Gunvaldsen are not demonstrably interchangeable | Court: Not substantially justified for either witness |
| Whether non-disclosure was "harmless" | Harmless: SSDD induced Fowles’ involvement and elected not to depose witnesses; Milo merely substitutes Gunvaldsen, so no prejudice | Prejudicial: Short time before trial prevented depositions, subpoenas, or targeted discovery; would disrupt trial if continuance needed | Court: Not harmless—prejudice and disruption support exclusion |
| Appropriate remedy under Rule 37(c)(1) | Allow testimony (or permit limited discovery/continuance) because testimony is important to imputation defense | Exclude testimony as self-executing sanction for failure to disclose | Court: Exclusion of Fowles and Milo granted (motion to exclude/sanction granted) |
Key Cases Cited
- Doe v. Young, 664 F.3d 727 (8th Cir. 2011) (Rule 37 sanctions help prevent unfair surprise in discovery)
- Trost v. Trek Bicycle Corp., 162 F.3d 1004 (8th Cir. 1998) (untimely disclosure treated as failure to disclose; exclusion authorized)
- Sellers v. Mineta, 350 F.3d 706 (8th Cir. 2003) (factors district court may consider when fashioning discovery sanctions)
- Wegener v. Johnson, 527 F.3d 687 (8th Cir. 2008) (district court has wide discretion in sanctions for Rule 26/e violations)
- Kahle v. Leonard, 563 F.3d 736 (8th Cir. 2009) (review of Rule 26(e) rulings for gross abuse of discretion)
- Troknya v. Cleveland Chiropractic Clinic, 280 F.3d 1200 (8th Cir. 2002) (references in discovery do not substitute for formal Rule 26 disclosures; exclusion may be appropriate)
- Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748 (8th Cir. 2006) (delays not substantially justified when avoidable)
- Davis v. U.S. Bancorp, 383 F.3d 761 (8th Cir. 2004) (delay may be justified when witness was unknown until immediately before trial)