United States District Court, N.D. Georgia, Atlanta Division
RODERIC D. DAVIS, Plaintiff,
CARLOS C. GREEN. Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Carlos C. Green's ("Defendant") Second Motion in Limine .
On October 10, 2012, Plaintiff Roderic D. Davis ("Plaintiff") filed a Complaint against Defendants Green and Thomas H. Pough ("Pough") (collectively, "Defendants"), in their individual and official capacities as Clayton County corrections officers. Plaintiff alleges that, while Plaintiff was detained in the Clayton County Jail, Defendants entered his cell, slammed his head against the concrete wall and metal bed, and knocked him unconscious. Plaintiff alleges that Defendants failed to provide him with medical assistance after he was assaulted. He claims he suffered permanent and severe physical and emotional injuries as a result of the alleged assault. Plaintiff contends that Defendants violated his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
On May 15, 2013, the Court dismissed Defendant Pough from this action for insufficient service of process. On May 29, 2014, the Court administratively closed this case because the case was inactive for several months. The Court required the parties to file a Motion to Vacate within sixty (60) days, warning that a failure to move to vacate would result in a dismissal of the action with prejudice. On July 28, 2014, Plaintiff moved to vacate the May 29, 2014, Order. On November 18, 2014, the Court reopened this matter. On January 12, 2015, Defendant Green moved for Judgment on the Pleadings on the ground that res judicata bars Plaintiff from litigating his federal claims in this Court. On April 13, 2015, the Court denied Defendant Green's Motion for Judgment on the Pleadings.
On April 27, 2015, Defendant Green moved in limine to preclude Plaintiff from introducing the testimony of witnesses and documents that were not disclosed during discovery, and evidence regarding several other matters. The Court now addresses each category of evidence that Defendant Green seeks to exclude.
1. Testimony of Undisclosed Witnesses
Defendant Green seeks to exclude Plaintiff from introducing the testimony of the following witnesses: Ben Davis, William Dubee, Garland Watkins, Ranisha Pendleton, Geraldine Washington, Renee Bright, Shon Hill, John Doe (Plaintiff's cellmate at the Clayton County Jail), Marcus Taylor, Cassandra Pitts, Phillip Neely, Jane Doe (Clayton County Jail nurse). Jim Doe (inmate at Clayton County Jail), Kymberly Winfrey, J. Williams, Moss, Martin, John Doe (Clayton County's investigator). Turnipseed, Carlos Green, Jamie Williams and Clide Moss ("the witnesses"). Defendant Green argues that the testimony of these witnesses should be excluded because Plaintiff failed to disclose them, and Plaintiff's failure to do so is not substantially justified or harmless.
Rule 26(a)(1)(A)(i) of the Federal Rules of Civil Procedure requires that a party must provide to other parties the name of "each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment." See Fed.R.Civ.P. 26(a)(1)(A)(i). Rule 26(e)(1)(A) of the Federal Rules of Civil Procedure requires the parties to supplement their Rule 26 disclosures in a timely manner. See Fed.R.Civ.P. 26(e)(1)(A).
Under Rule 37(c)(1) of the Federal Rules of Civil Procedure. "if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." See Fed.R.Civ.P. 37(c)(1); Romero v. Drummond Co., Inc., 552 F.3d 1303, 1323 (11th Cir. 2008) (A party that "fails to provide information... as required by Rule 26(a)... is not allowed to use that information or witness to supply evidence... at trial unless the failure was substantially justified or is harmless.") (internal quotation marks and citations omitted)). The initial disclosure requirements of Rule 26 are fundamental to the orderly, efficient, cost-effective and fair litigation of civil cases and the Rule 37(c)(1) remedies are directed at sanctioning a litigant for failing to provide or supplement the most basic information necessary to efficiently and fairly litigate a dispute.
Plaintiff admits that he did not disclose the witnesses Defendant Green seeks to exclude from testifying at trial. Plaintiff did not supplement his disclosures and identify any of these witnesses until May 13, 2015, the day after Plaintiff filed his response to Defendant's Second Motion in Limine. At this point, when this "disclosure was made" the case had been pending for two and one half years, discovery had been closed for months, and the trial was set to take place in less than four weeks. Plaintiff's only argument advanced to excuse this discovery and disclosure failure is that he failed to identity the witnesses or disclose the subject-matter of their testimony because "the court file containing challenged information had been misplaced and was not located until the parties were preparing the [p]retrial [o]rder." Pl.'s Resp. at 2. This vague excuse is not supported by facts. Plaintiff does not explain who misplaced the court file or how the court file was allegedly misplaced. Plaintiff contends that his failure to disclose the witnesses was harmless because Defendant Green provided some of the "challenged information on or about February 8, 2010 per the public record request submitted by plaintiff's counsel to the Clayton County Sherriff's Department." Id. This conclusory claim also is not supported by facts, and it does not excuse Plaintiff from fulfilling his discovery obligations.
In Nance v. Ricoh Electronics, Inc., the Eleventh Circuit rejected the plaintiff's argument that the defendant was not prejudiced by plaintiff's failure to disclose witnesses because the undisclosed witnesses were the defendant's employees "with whom [the defendant] was familiar." 381 App'x 919, 923 (11th Cir. 2010). The Eleventh Circuit held that the plaintiff's argument did not justify his failure to disclose the witnesses. Id. Here, Plaintiff argues that his failure to disclose should be excused because Defendant Green provided him with information pursuant to a public record request. Id. Plaintiff does not explain why Defendant Green should have known about the undisclosed witnesses based on a public record request initiated by Plaintiff. Even if the Court assumes that Defendant Green was familiar with the undisclosed witnesses, mere "familiarit[y]" with a witness does not justify Plaintiff's failure to comply with his discovery obligations. Id. The disclosure of people who have knowledge of the facts of a case are fundamental and critical to civil litigation. It is these disclosures that put a party on notice of the evidence that it must understand and with which it may have to contend at trial. The disclosures are essential to develop a reasoned, cost-effective plan for discovery. It allows a party to assess its case and the end result is often an early resolution to the dispute. Plaintiff's refusal to embrace these litigation obligations thwarted the purpose of these discovery rules.
Plaintiff here failed to provide any argument that his failure to disclose was substantially justified. The Court also finds that the failure to disclose these witnesses is not harmless because Defendant Green did not have the opportunity to depose them and conduct proper discovery. See Nance, 381 F.Appx. at 923 (holding that failure to disclose witnesses was not harmless because defendant did not have the opportunity to depose the witnesses and conduct discovery). Defendant Green's Motion in ...