Grayiel v. AIO Holdings, LLC, 3:15-cv-00821

Plaintiff George Grayiel alleges defendants (AIO Holdings, Samir and Gregory Anastas, and others) engaged in a fraud scheme diverting his ~$900,000 investment in natural gas ventures managed by Martin Twist.
Grayiel listed two potential witnesses, Jerry M. Layne, Sr. and Todd Pilcher, on his witness list but omitted their contact information in an August 2017 filing.
Defendants moved to strike Layne and Pilcher from testifying and to prevent Grayiel from amending his witness list for failing to provide addresses/phone numbers as required by Rule 26(a)(3)(A)(i).
The court considered Federal Rule of Civil Procedure 37(c)(1) (exclusion for failure to disclose) and applied the Sixth Circuit five-factor test from Howe to assess whether the omission was substantially justified or harmless.
The court found no surprise or prejudice given prior notice of the witnesses, available time before trial (July 30, 2018) to cure by reopening limited discovery, the importance of the testimony to fraud claims, and Grayiel’s (accepted) explanation that contact information became ascertainable only after recent production.
The court ordered Grayiel to promptly supplement the witness list with contact information and denied the defendants’ motion to strike; it also reaffirmed the duty to supplement under Rule 26(e).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether omission of witnesses’ contact info warrants exclusion under Rule 37(c)(1)	Omission was harmless; defendants had notice of witnesses and contact info recently became available	Omission violated scheduling orders and Rule 26; exclusion appropriate	Denied; omission found harmless and not gamesmanship; exclusion not warranted
Whether plaintiff may supplement the witness list with contact information	Must be allowed to supplement under Rule 26(e) when new info learned	Supplementation would defeat scheduling order purposes and deadlines	Plaintiff must supplement; Rule 26(e) requires timely correction; supplementation allowed to cure omission
Whether reopening discovery/depositions is required to cure prejudice	Reopening limited discovery or permitting depositions is feasible and will cure any surprise	Reopening would prejudice or disrupt trial preparation	Court found limited reopening/depositions possible without undue disruption; allowed cure
Whether testimony of Layne and Pilcher is important enough to justify relief from sanction	Testimony likely material to ownership/fraud issues in plaintiff’s claim	Plaintiff’s descriptions are vague; uncertain what testimony will show	Court concluded testimony is important to fraud claims; factor favors plaintiff

Howe v. City of Akron, 801 F.3d 718 (6th Cir. 2015) (sets out the five-factor test for whether a Rule 26 disclosure omission is harmless or substantially justified)
Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357 (6th Cir. 2010) (discusses standards for avoiding sanctions under Rule 37 when disclosures are late)
Russell v. Absolute Collection Servs., Inc., 763 F.3d 385 (4th Cir. 2014) (applies factors for determining harmlessness of belated disclosure)
Emanuel v. County of Wayne, [citation="652 F. App'x 417"] (6th Cir. 2016) (party must supplement witness disclosures when addresses change or were incorrect)