Drake v. Living Spaces Furniture LLC, 2:22-cv-01384

Konnie Drake sued Living Spaces; in the joint final pretrial order Defendant listed six potential witnesses that Drake objected to as not having been disclosed by name. The Court ordered briefing and Defendant moved to allow five of the disputed witnesses to testify (one, Jacobs, would not testify in Defendant’s case-in-chief).
Governing rules: Rule 26(a)(1)(A)(i) (mandatory initial disclosure of individuals with discoverable information) and Rule 37(c)(1) (exclusion sanction unless nondisclosure is substantially justified or harmless).
Disputed witnesses and roles: Rhonda Bell (senior HR director / corporate representative); Marina Alcocer (visual communications manager); Bobby Wilson (inventory control manager); Anthony (A.J.) Dekker (former supervisor alleged to have made racial slurs); Jeff Brodin (outside counsel who investigated Drake’s complaints).
Drake’s position: none of the disputed witnesses were identified by name in Defendant’s disclosures, so they should be excluded. Living Spaces’ position: certain disclosures (generic corporate representative or other circumstantial notice) and usage (impeachment) justify allowing testimony.
Procedural facts: Thorne and Stump provided declarations attached to Drake’s summary judgment response raising allegations Defendant contends are inconsistent with prior statements to Alcocer, Wilson, and Brodin; neither side deposed Thorne or Stump during discovery.

Issue	Drake's Argument	Living Spaces' Argument	Held
Whether a generic "company representative" disclosure satisfies Rule 26 for a named corporate HR witness (Bell)	Generic descriptions are insufficient; must identify individuals	Generic disclosure of a corporate representative is sufficient where subjects are disclosed and testimony is corporate in nature	Allowed: Bell may testify; generic corporate-rep disclosure was adequate and, alternatively, any nondisclosure was harmless/substantially justified
Whether Alcocer and Wilson can testify despite not being named in Rule 26 disclosures	Non-disclosure requires exclusion; mentions in depositions do not satisfy Rule 26	Their testimony is harmless because their names were referenced and they can impeach Thorne and Stump	Allowed only for impeachment of Thorne/Stump (impeachment-only exception to Rule 26)
Whether Dekker (central alleged actor) may testify despite not being disclosed	Exclusion required for failure to disclose	Dekker was obviously a central figure; nondisclosure was harmless and not in bad faith	Allowed: Dekker may testify (nondisclosure found harmless given centrality and lack of surprise)
Whether outside counsel Brodin may testify despite nondisclosure	Exclude Brodin for failure to disclose	Brodin may be needed to refute declarations; alternatively, may testify for impeachment only	Denied as to general testimony; Allowed only for impeachment of Thorne/Stump (impeachment-only)

Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) (Rule 37(c)(1) enforces Rule 26 by potentially barring undisclosed evidence at trial)
R&R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240 (9th Cir. 2012) (burden shifts to noncompliant party to show substantial justification or harmlessness)
Liberty Ins. Corp. v. Brodeur, 41 F.4th 1185 (9th Cir. 2022) (harmlessness factors: surprise/prejudice, ability to cure, trial disruption, bad faith)
Merchant v. Corizon Health, Inc., 993 F.3d 733 (9th Cir. 2021) (Rule 37(c)(1) is an "automatic" sanction but exclusion is avoidable if nondisclosure is justified or harmless; party facing sanction must seek lesser relief)
Gribben v. United Parcel Serv., Inc., 528 F.3d 1166 (9th Cir. 2008) (impeachment evidence is exempt from Rule 26 disclosure requirement)
Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843 (9th Cir. 2014) (a passing deposition reference to a person does not satisfy Rule 26 disclosure obligations)
Spence v. American Airlines, Inc., 775 F. Supp. 3d 963 (N.D. Tex.) (where subjects are disclosed and testimony is corporate, generic designation of corporate representatives can satisfy Rule 26)