The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me for all purposes including trial. Currently pending and ready for resolution are the following motions: 1) defendant Islamic Saudi Academy's ("ISA's") Motion in Limine to Exclude Testimony of "Me Too" Allegations of Discrimination and Hearsay Evidence of Defamation [#43], 2) Plaintiff's Motion to Strike Defendants' Motion in Limine [#45], 3) the ISA's Motion to Quash Subpoenas Duces Tecum and Motion for Protective Order as to Subpoenas Ad Testificandum [#48], 4) Plaintiff's Motion to Strike Defendant's Motion to Quash, Motion to Disqualify and Motion to Enjoin [#51], and 5) Plaintiff's Supplemental Memorandum of Law and Motion to Compel [#54].
In a recent Order, I commented upon the cavalier attitude the parties in this case have displayed with regard to the Court's deadlines. Based on recent developments, I realize that I previously understated the problem, and that there now exist complications that could have been avoided had the parties only obeyed the Federal Rules of Civil Procedure and complied with the deadlines they agreed to and I ordered.
They have created a situation where the legal issues presented by their recent filings have had to be resolved under emergency conditions, causing the Court to have to defer work on other cases. Litigants simply have no right to ignore deadlines or their obligation to attend a pretrial conference ready to try their case in a few short weeks. Instead, the pretrial conference in this case became an occasion that imposed upon the Court obligations that never would have come into existence if counsel had either complied with the discovery deadlines or moved to extend those deadlines to accomplish some important purpose. Surely, doing that makes much more sense than creating "emergencies" that should have never happened in the first place.
On April 20, 2010, I granted plaintiff leave to file her Second Amended Complaint [#20-2].*fn1 On August 9, 2010, the parties filed their Rule 26(f) Joint Report [#28]. Therein, the parties proposed that discovery be completed by January 14, 2011. Id. at 3. Without moving for an enlargement of time within which to complete discovery, however, the parties then took it upon themselves to schedule plaintiff's deposition on February 17, 2011, one month after the discovery deadline. The issues that are currently before me arose as a result of that untimely deposition.
I. Motion in Limine to Exclude Testimony of "Me Too" Allegations of Discrimination and Hearsay Evidence of Defamation
A. Testimony of "Me Too" Allegations of Discrimination
During her deposition on February 17, 2011, plaintiff indicated that there were other individuals who worked for the defendants who might have information pertaining to her claim that Saudi employees were treated more favorably than non-Saudis. Two more weeks went by, and plaintiff's counsel finally sent defendants' counsel an e-mail indicating plaintiff's intent to issue subpoenas ad testificandum for twenty-one (21) persons. Notice of Service of Subpoenas [#34] was filed electronically with the Court on March 24, 2011. A service copy of those subpoenas was then provided to defendants' counsel on April 4, 2011. On April 18, 2011, defendants' counsel moved in limine to exclude the testimony of these twenty-one people, even though he did not learn what the witnesses would actually say until April 22, 2011, when he received plaintiff's section of the Joint Pretrial Statement Pursuant to Local Civil Rule 16.5 [#47]. On April 26, 2011, defendants' counsel modified his original motion, and now seeks to preclude the testimony of only eleven of the original twenty-one subpoenaed witnesses. See [#48] at 1.
First, plaintiff never identified these witnesses in her Rule 26(a)(1)(A) statement. In that statement, she only listed the following: 1) herself, 2) her husband, 3) any individuals named in defendant's initial disclosures, 4) any individuals needed to authenticate a document or establish a chain of custody, 5) any individuals identified in plaintiff's discovery requests or responses, and 6) any individuals named in defendants' discovery requests or responses as persons "likely to have discoverable information." Memorandum in Reply on Motion to Quash and in Opposition to Motion to Strike, Disqualify and Enjoin [#53], Exhibit B at 2-3; Fed. R. Civ. P. 26(a)(1(A). Nor did plaintiff ever file a timely supplement to that statement, as required by Rule 26(e)(1)(A) of the Federal Rules of Civil Procedure. Instead, plaintiff's counsel merely sent defendants' counsel an e-mail naming these additional witnesses long after the discovery deadline had passed.
The penalty for failing to make the required initial disclosure or the requisite supplemental disclosure is specified in Rule 37(c) of the Federal Rules of Civil Procedure. According to the rule, plaintiff cannot later call a previously unidentified witness unless her failure to identify the witness in a timely fashion was either substantially justified or harmless.
Plaintiff's attempt to justify her delay in providing defendants with the names of the potential witnesses on the grounds that she only knew of their identifies at the time her deposition was taken is frivolous; how could she not know prior to bringing her lawsuit the identities of the persons whom she believed were treated differently than she was, based on her ethnicity? They are, after all, her fellow employees. Plaintiff cannot be seriously suggesting that prior to her deposition she had no reason or opportunity to identify for her lawyer those witnesses who would support her claim of discrimination and with whom she had worked.
Plaintiff also ignores that the rule is stated in the disjunctive. The self-executing sanction in Rule 37(c)(1) applies unless the party who failed to make or supplement the required disclosure establishes that her failure was substantially justified or harmless. Since her failure was not justified at all, let alone substantially justified, there is no reason to consider whether the failure was or was not harmless to the ISA. Her recent argument that the Court should take into account both parties' failure to comply with discovery deadlines and then balance the interest in complying with those deadlines against the consequences of her not being able to call certain witnesses is completely wrong.*fn2 Rule 37(c)(1) states that if a party does not make the requisite disclosure, the party is not allowed to use that witness; it admits of no discretion to do anything besides either imposing the sanction of precluding the witness from testifying or imposing one of the sanctions specified in Rule 37(b)(2)(A)(i)-(vi). Fed. R. Civ. P. 37(c)(1)(C). One of these sanctions must therefore be ...