Defendants can’t call witnesses, introduce docs

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Where defendants proposed calling witnesses and introducing documents at an evidentiary hearing on damages that they never identified in their initial disclosures, and the failures were not substantially justified or harmless, the defendants were prohibited from calling the majority of their witnesses and using any of the documents at the hearing.

Background

This case is set for a two-day evidentiary hearing on Aug. 15 and 16, 2023, for the court to determine the appropriate remedies and/or damages in connection with the entry of default against each defendant. Now pending before the court are plaintiffs’ objections to defendants’ witness and exhibit lists.

Exhibits

Plaintiffs object to all 17 exhibits on defendants’ initial list. For several reasons, all of defendants’ proposed exhibits must be excluded.

First, defendants did not list any of these documents in their initial disclosures from July 22, 2021, as required by Rule 26(a)(1)(A)(ii), nor did they supplement the initial disclosures to include these documents, as required by Rule 26(e)(1)(A). Moreover, defendants have not disputed that these documents were withheld from discovery. As a result, defendants are presumptively prohibited from using any of these documents at the damages/remedies hearing unless their failure to list them in their initial disclosures (or appropriately supplement those disclosures) was substantially justified or harmless. Neither exception applies here.

Witnesses

For analogous reasons to those discussed earlier with respect to the proposed exhibits, all but one of defendants’ 12 proposed witnesses must be excluded. As with the exhibits, most of the witnesses on defendants’ list were not included in their initial disclosures from July 22, 2021, as required by Rule 26(a)(1)(A)(i), nor were they included in any supplemental disclosure as required by Rule 26(e)(1)(A). The only proposed witness who was listed in defendants’ initial disclosures was Ajin.

Thus, defendants are presumptively prohibited from calling any of the listed witnesses (other than Ajin) at the damages/remedies hearing unless their failure to timely disclose them was substantially justified or harmless. Again, as with the exhibits, defendants have not demonstrated either a substantial justification for their nondisclosure or that introducing the testimony of these witnesses would be harmless.

Defendants nevertheless object to Ajin’s testimony on the grounds that defendants’ discovery violations prevented plaintiffs from timely deposing him, that defendants withheld in discovery materials related to his testimony and that portions of his testimony are irrelevant. The court will take those objections under advisement pending defendants’ introduction of Ajin’s testimony at the hearing. To the extent that testimony implicates matters raised in plaintiffs’ objections, plaintiffs are free to re-raise those objections, and the court will rule on them considering the testimony proffered.

Plaintiffs’ objections to defendants’ proposed exhibit and witness lists sustained in part.

Consumer Financial Protection Bureau v. Nexus Services Inc., Case No. 5:21-cv-00016, Aug. 8, 2023. WDVA at Harrisonburg (Dillon). VLW 023-3-461. 14 pp.