Rebuttal Witnesses Not Too Late

In plaintiffs’ defamation suit against a television station, a Norfolk U.S. District Court magistrate judge says plaintiffs may not belatedly designated certain persons as case-in-chief witnesses, but they may name two additional persons as rebuttal witnesses.

Plaintiffs allege defendants’ March 31, 2011 broadcast contained “false implications … that the plaintiffs had unlawfully converted or embezzled monetary deposits of customers, and then fraudulently sold their business to ‘Boots’ Daughtery [sic] without disclosing the existence of $25,000 in accounts payable.”

Plaintiffs have filed the present motion to designate witnesses out of time. The Rule 16(b) scheduling order distinguishes between case-in-chief information and rebuttal or impeachment information for purposes of the Rule 26(a)(3) pretrial disclosures.

Plaintiffs fail to meet the burden of showing their failure to comply with Rule 26(a) was substantially justified or harmless. Plaintiffs’ amendment adding the Daughertys missed the Rule 26(a)(3) deadline of Nov. 9, 2011, which was set by the amended Rule 16(b) scheduling order. Plaintiffs provide the following justification for omitting the Daughertys from their Rule 26(a)(3) disclosure: “Plaintiff had for good reason assumed the Daughertys would be listed as defense witnesses.” Thus, despite mentioning the Daughertys numerous times in interrogatories and deposition, plaintiffs made a tactical decision to omit the Daughertys from their Rule 26(a)(3) disclosures. Fourth Circuit precedent suggests if the omission is intentional, untimely disclosure of a witness is not substantially justified.

Plaintiffs admit that on Nov. 18, 2011, “it became apparent that the Daughertys may be necessary to authenticate two important email exhibits to which defendants had unexpectedly objected.” However, plaintiffs did not move the court for leave to amend their disclosures at that time. Since plaintiffs have brought this potential evidentiary failure upon themselves as the result of a tactical decision, allowing the Daughertys to be added as witnesses would not be harmless to defendants. Thus, plaintiffs are not permitted to designate the Daughertys as additional case-in-chief witnesses.

Plaintiffs maintain the remaining two witnesses are only expected to be called as rebuttal witnesses, if called at all. Plaintiffs’ justification for designating these witnesses out of time is that defendants’ new counsel raised “unanticipated issues” during plaintiff’s deposition leading him to identify these witnesses. Plaintiffs timely served their Rule 26(a)(3) disclosures, which identified both these persons as trial witnesses. Because rebuttal witnesses are not required to be designated in Rule 26(a)(3) disclosures and these persons will be called only as rebuttal witnesses, they will be permitted to testify at trial.

Walsh v. WAVY Broadcasting LLC (Miller) No. 2:11cv174, March 5, 2012; USDC at Norfolk, Va. VLW 012-3-115, 5 pp.