Case 3:15-cv-00357-HEH-RCY Document 161 Filed 02/16/16 Page 1 of 6 PageID# 2253 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION BARBARA H. LEE, et al., v. Plaintiffs, Civil Action No. 3:15-CV-357-HEH VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants. PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION TO EXCLUDE THE TESTIMONY OF WITNESSES DISCLOSED AFTER DEPOSITION DEADLINE Plaintiffs Barbara H. Lee, Gonzalo J. Aida Brescia, and The Democratic Party of Virginia respectfully request that this Court exclude the testimony of five witnesses whom Defendants disclosed for the first time Friday night after the deadline for depositions, after they should have been disclosed pursuant to Rule 26(a)(1)(A)(i), and only ten days prior to trial. These witnesses are current or former General Registrars of localities within the Commonwealth and an officer of a local Electoral Board, officials Defendants presumably consulted with and surely could have consulted with months ago concerning this case. Defendants have provided no excuse for their last-minute disclosures. Allowing these newly disclosed witnesses to testify without Plaintiffs having had any opportunity to discover and test the substance of their testimony would prejudice Plaintiffs, and, contrary to the letter and purpose of the Federal Rules, permit Defendants to conduct a trial by surprise. 1 Pursuant to this Court s Consent Order Granting the Parties Joint Motion to Modify 1 Counsel for Defendants has informed counsel for Plaintiffs that Defendants oppose this motion.
Case 3:15-cv-00357-HEH-RCY Document 161 Filed 02/16/16 Page 2 of 6 PageID# 2254 Scheduling Order issued on January 29, 2016 (ECF No. 134), the deadline to take depositions in this case was February 10, 2016. 2 The parties had jointly requested and the Court granted an extension of the deposition schedule in order to facilitate the depositions of expert and fact witnesses that the parties had been discussing for weeks. As the Joint Motion to Modify Scheduling Order noted, moreover, several depositions had to be rescheduled due to winter storm Jonas. ECF No. 131 at 2. On their witness list (ECF No. 157) and in supplemental disclosures provided to Plaintiffs last Friday night after the deposition deadline Defendants identified five witnesses who had never previously been identified in any way as potential witnesses. These new witnesses are: 1. J. Kirk Showalter, General Registrar, City of Richmond; 2. Donna Patterson, General Registrar, Virginia Beach; 3. Cameron Quinn, former General Registrar, Fairfax County; 4. Tammy Alexander, Secretary, Petersburg Electoral Board; and 5. Dawn Williams, General Registrar, Petersburg. At no time prior to Friday night did Defendants suggest that they would be calling to testify at trial several previously undisclosed witnesses, much less officials of political subdivisions of the Commonwealth whom Defendants easily could have contacted long ago. The Federal Rules provide that a party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at trial... any witness or information not so disclosed. S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 n. 2 (4th Cir. 2003) (quoting Fed. R. Civ. P. 2 Plaintiffs were unable to take the deposition of James Alcorn, the 30(b)(6) witness for the State Board of Elections, prior to February 10, 2016 due to Mr. Alcorn s unavailability. The parties are continuing to work together to schedule the deposition prior to trial. 2
Case 3:15-cv-00357-HEH-RCY Document 161 Filed 02/16/16 Page 3 of 6 PageID# 2255 37(c)(1)). The basic purpose of this rule is to prevent[] surprise and prejudice to the opposing party. Id. at 596; accord Firehouse Rest. Grp., Inc. v. Scurmont LLC, No. 09-00618-RBH, 2011 WL 3555704, at *2 (D.S.C. Aug. 11, 2011) (same). Courts routinely prohibit parties from introducing material at trial when that material was not timely disclosed to opposing parties during the discovery period. See, e.g., Reaves v. Ragin, No. 07 1294, 2011 WL 2579755, at *5 (D. Md. June 23, 2011) (excluding late productions because Rule 37 does not allow counsel to simply fail[] to comply with [a discovery] schedule ); see also Bowling v. Hasbro, Inc., No. 05-229S, 2007 WL 3274328, at *2 (D.R.I. Nov. 5, 2007) ( Opening the doors of discovery to new theories and new evidence at this late stage of the proceedings would unfairly prejudice and harm [the opposing party] and [a] Court is well within its discretion to preclude this type of last minute ambush.... [S]upplemental discovery material that is provided much too close to trial may be excluded. At this point in the proceedings, discovery has long been closed, the summary judgment stage has passed, and trial is just around the corner. (internal quotation marks omitted). Notably, Rule 37(c)(1) does not require a finding of bad faith or callous disregard of the discovery rules in order for a witness to be excluded. Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir. 2011). Here, Defendants identification of these five new witnesses just 10 days before the start of trial and after the deadline for depositions is plainly untimely. This late disclosure has also prejudiced Plaintiffs. Had these witnesses been timely disclosed, Plaintiffs would have sought to depose them so that they could prepare to cross-examine them at trial. Indeed, Plaintiffs took the depositions of almost all of the witnesses Defendants had previously disclosed pursuant to Rule 26(a)(1)(A)(i) as individual[s] likely to have discoverable information... that the disclosing party may use to support its claims or defenses. Based on the information 3
Case 3:15-cv-00357-HEH-RCY Document 161 Filed 02/16/16 Page 4 of 6 PageID# 2256 learned in deposition, Plaintiffs may also have modified their exhibit and witness lists, which were also due before Defendants untimely disclosure of these new witnesses. Now, Plaintiffs cannot do so. Significantly, it does not appear that these new witnesses are being called simply to establish the admissibility of particular documents or for some other technical purpose. Rather, it appears the Commonwealth intends to call these witnesses to provide substantive testimony that Plaintiffs should have had the opportunity to probe in deposition. Thus, Plaintiffs respectfully request that the Court exclude the testimony of the five witnesses who were disclosed after the deposition deadline. DATED: February 16, 2016 By: /s/ Aria C. Branch Marc Erik Elias (admitted pro hac vice) Bruce V. Spiva (admitted pro hac vice) Elisabeth C. Frost (admitted pro hac vice) Aria Branch (VSB # 83682) Amanda R. Callais (VSB # 85891) Ceridwen Cherry (admitted pro hac vice) PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: 202.434.1627 Facsimile: 202.654.9106 Email: MElias@perkinscoie.com Email: BSpiva@perkinscoie.com Email: EFrost@perkinscoie.com Email: ABranch@perkinscoie.com Email: ACallais@perkinscoie.com Email: CCherry@perkinscoie.com 4
Case 3:15-cv-00357-HEH-RCY Document 161 Filed 02/16/16 Page 5 of 6 PageID# 2257 Joshua L. Kaul (admitted pro hac vice) PERKINS COIE LLP 1 East Main Street, Suite 201 Madison, WI 53703-5118 Telephone: 608.663.7460 Facsimile: 608.283.1007 Email: JKaul@perkinscoie.com Attorneys for Plaintiffs 5
Case 3:15-cv-00357-HEH-RCY Document 161 Filed 02/16/16 Page 6 of 6 PageID# 2258 CERTIFICATE OF SERVICE On February 16, 2016, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing to the following: Dana J. Finberg Arent Fox LLP 55 Second Street, 21st Floor San Francisco, CA 94105 Tel: 415.757.5500 Fax: 415.757.5501 dana.finberg@arentfox.com Mark F. (Thor) Hearne, II Arent Fox LLP 112 S. Hanley Road, Suite 200 Clayton, MO 63105 Tel: 314.296.4000 Fax: thornet@ix.netcom.com Attorneys for Defendants By_/s/ Aria C. Branch Perkins Coie LLP 700 13th St. N.W., Suite 600 Washington, D.C. 20005-3960 Phone: (202) 654- Fax: (202) 654- @perkinscoie.com Attorney for Plaintiffs 6