Wright v. Watkins and Shepard Trucking, Inc., 2:11-cv-01575

Plaintiffs (including guardian Melissa Wright for Brogan Wright) seek to add documents and allow testimony about Brogan Wright’s termination from employment shortly before trial set for June 6, 2016.
Brogan worked for Opportunity Village from March 26, 2014 to June 2015; Plaintiffs subpoenaed and produced his employment file to Defendants on April 21, 2016.
Plaintiffs served a Rule 26 supplement identifying four new witnesses on April 25, 2016, nine months after the joint pretrial order and over ten months after Brogan’s employment ended.
Plaintiffs moved on May 13, 2016 to use the employment records and permit the newly identified witness regarding termination to testify; Defendants opposed the motion.
The court applied Rule 16 and the Ninth Circuit factors for modifying pretrial orders (prejudice, cureability, trial impact, willfulness/bad faith) and found Plaintiffs offered no justification for the delay.
The court concluded prejudice to Defendants (lack of time for depositions/rebuttal and disruption of trial strategy) outweighed Plaintiffs’ late disclosure and denied the motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether to modify the pretrial order to allow new witnesses/testimony about Brogan’s termination	Recent employment file and newly identified witness are relevant and should be admitted	Late disclosure (months after pretrial order) prejudices Defendants and prevents adequate preparation	Denied — court refused to modify pretrial order due to prejudice and unjustified delay

Forro Precision, Inc. v. International Bus. Machines Corp., 673 F.2d 1045 (9th Cir. 1982) (trial court has broad discretion to permit or exclude witnesses not listed in pretrial order)
Byrd v. Guess, 137 F.3d 1126 (9th Cir. 1998) (applying Rule 16(e) and factors for amending pretrial orders)
Galdamez v. Potter, 415 F.3d 1015 (9th Cir. 2005) (lists four-factor test for modifying pretrial order)
United States v. First Nat'l Bank of Circle, 652 F.2d 882 (9th Cir. 1981) (modification allowed when refusal would cause injustice and allowance causes only slight inconvenience)
Colvin v. United States, 549 F.2d 1338 (9th Cir. 1977) (evidence not timely disclosed may be excluded; exclusion results from the presenting party's failure)
Delta Sys., Inc. v. TRW, 874 F.2d 815 (9th Cir. 1989) (supports exclusion where party fails to disclose in a timely manner)
United States v. Lummi Indian Tribe, 841 F.2d 317 (9th Cir. 1988) (same principle regarding untimely disclosures)
Eberle v. Town of Southampton, 305 F.R.D. 32 (E.D.N.Y. 2015) (late disclosure can require further discovery and prolong proceedings, supporting denial)